Deeds and title disputes: recording

Question 1

Common law recording rule

Answer 1

At common law, the “first in time, first in right” rule applies—i.e., the first grantee to receive a deed wins.

If a recording act does not apply, then the common law rule takes over.

Question 2

Interests covered by recording acts

Answer 2

Recording acts cover deeds, mortgages, leases, options, judgments affecting title, and other instruments creating an interest in land—e.g., an easement or covenant.

Question 3

Interests covered by recording acts: operation of law

Answer 3

Recording acts do not cover interests created by operation of law—e.g., title acquired by adverse possession.

Question 4

Interests covered by recording acts: economic investment

Answer 4

Recording acts do not protect:

• a subsequent grantee who is a donee;
• a mortgagee who did not obtain a mortgage simultaneously with giving value (i.e., a loan).

They do, however, protect donees and any grantees who record before subsequent grantees.

Question 5

Types of recording acts: race

Answer 5

Under race statutes, the first to record wins, even if she does so with notice of a prior, unrecorded conveyance.

Race statutes use language such as “first recorded” or “first to record.”

Question 6

Types of recording acts: notice

Answer 6

Under notice statutes, a subsequent purchaser wins if she does so without notice of a prior, unrecorded conveyance.

Notice statutes use language such as “in good faith” or “without notice.”

Question 7

Types of recording acts: race–notice

Answer 7

Under race–notice statutes, a subsequent purchaser wins if she:

(1) Records first; and
(2) Does so without notice of a prior unrecorded conveyance.

Race–noice statutes use a combination of either “in good faith” or “without notice” and “first duly recorded” or “first recorded.”

Question 8

Shelter rule

Answer 8

Under the shelter rule, a person who takes from a bona fide purchaser protected by the recording act has the same rights as her grantor.

Question 9

Notice

Answer 9

Notice includes actual, constructive, or inquiry notice as to the prior conveyance.

Knowledge obtained after a conveyance does not constitute notice.

Question 10

Effecting a transfer of real property

Answer 10

Recording a deed is not necessary to effect a transfer of real property.