Property: the recording system

Question 1

Common Law: First-in-Time is First-in-Right.

In 2016, O conveys Blackacre to A. In 2017, O conveys Blackacre to B. In 2018, O conveys Blackacre to C. Under the common law, who has superior title?

Answer 1

A, because after the conveyance to A, O had no interest left to convey.

Question 2

Purpose of Recording Acts

Answer 2

to protect subsequent bona fide purchasers and mortgagees (but not judgment creditors, unless the recording act so provides); a BFP is one who:

1. gives substantial new value and
2. takes without notice of prior claims; notice may be

actual notice

record notice (but only if filing is in the proper chain of title)

inquiry notice (all purchasers have a duty to inspect property; thus, if a prior claimant is living on the property, a subsequent purchaser is deemed to have notice, whether or not she inspects)

inquiry notice would also include reference in the record to unfiled documents if a reasonable person would investigate such documents

BFP status is determined at the time of purchase (i.e., giving value); notice acquired after purchase is irrelevant

3. A recording is not necessary for a deed to be enforceable between the

grantor and grantee

4. A person who is not a BFP (because he or she did not give value or had notice of prior claims) may still be protected as a BFP by the “shelter rule” if that person acquired the property from a BFP.

Question 3

Three types of recording statutes: 1. (Pure) Race Statutes (DE, NC, LA):

Answer 3

first to record wins—no exceptions (notice is irrelevant)

Question 4

Three types of recording statutes: 2. Notice Statutes (about 50% of states):

Answer 4

A subsequent bona fide purchaser or mortgagee wins—no exceptions

MBE Language:

“A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded” or

“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.”

Question 5

Three types of recording statutes: 3. Race-Notice Statutes (about 50% of states):

Answer 5

A subsequent BFP or mortgagee wins, but only if she records her deed or mortgage before the prior claimant records

MBE Language:

“A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded” or

“No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record.”