Recording Acts

Question 1

Remember that when classifying a recording statute, the operative question you need to ask is:

Answer 1

What must the second (subsequent) claimant do to qualify for the protection of the recording act?

Question 2

Notice (recording acts)

Answer 2

Subsequent Claimant must be a purchaser for value and w/o notice [half of the states]

Question 3

Race (recording acts)

Answer 3

Subsequent Claimant must record his own conveyance before A. (whoever records first prevails)
[only Delaware, Louisiana, North Carolina]

Question 4

Race-Notice (recording acts)

Answer 4

Subsequent claimant must be a purchaser for value and w/o notice and must record before A [half of states]

Question 5

Three types of notice

Answer 5

Types of notice:
1. Actual notice (they actually saw something that should have given rise to questions)

2. Constructive record notice (e.g. we’re going to treat that party as if they have notice even if they do not have notice)

3.Constructive appearance/Inquiry notice ex: construction or other activity going on at the property
Possession can serve as inquiry notice to prior claim of title

Question 6

Purchaser for value

Answer 6

For value = does not have to be fair market value, nominal amount does not count, gifts don’t count, inheritance and wills don’t count
Typically a creditor who puts a lien on the property is not treated as having paid value
Mechanics lien = lien put on the property by someone who has done work on the property (typically renovations) not considered for value BUT mechanics liens relate back to when the work was started we don’t treat them as the subsequent party b/c they relayed back

Question 7

Shelter Rule

Answer 7

(this comes up when we have a lot of grantees)

Can this grantee shelter under a prior BFP even if they are not themselves a BFP (for value & w/o notice)?

Scenario: A -> X (X does not record) / Later A -> B -> C (C got property in will)
C is not a BFP but may nevertheless be able to use the recording act to prevail by sheltering under B (if C can show that B would have prevailed over X then C can shelter the title underneath them)

Question 8

4 different types of recording title issues: (there are certain types of adverse conveyances that are difficult or impossible to find, even though they may be filed in the records system)

Answer 8

1. wild deed
2. the late recorded deed
3. the early recorded deed
4. the deed for one parcel encumbers another parcel

Question 9

Wild Deed issue

Answer 9

the second filed-but-not-recorded instrument(somebody down the line did not record) - a deed that is not connected into the chain of title through the name of either grantor or grantee

Question 10

The late recorded deed issue

Answer 10

Suppose a previous owner executed and delivered an adverse conveyance, but the grantee did not record the instrument of conveyance, but the grantee did not record the instrument of conveyance until many years later after receiving it - perhaps so many years later that a subsequent deed in the chain of title was recorded before his “late-recorded” deed
whether the court would expect a title searcher to search the title index from before the grantor got the property to the present, if the court would expect a title searcher to do so = treated as recorded + provide notice & vice versa (there is likely different results depending on whether it is a book system or an electronic system)

Question 11

The early recorded deed issue

Answer 11

Under the doctrine of after-acquired title - suppose someone w/ no title at all executes and delivers a warranty deed, and his grantee records it. If you are performing a search, do you need to look under the grantor’s name in the records, not only during the period he appears to have held title, but also during earlier periods? Majority = no and treat the early-recorded deed unrecorded

Question 12

The deed for one parcel encumbers another parcel issue

Answer 12

the covenant encumbering the retained lot is contained in a recorded deed, but it is in the deed for a different lot then you are searching / result split w/ half of the cases considering this problem save the title searcher the extra work by treating the encumbrance on the retained lot as if it were unrecorded

Question 13

Chain of title search

Answer 13

1st step -> chain of title research: Land is indexed (a book) 3 ways: by grantor, by grantee, by location(not as reliable as grantor & grantee indexes b/c location descriptions change over time) We start with backtracking from the grantee index
2nd step -> now look in the grantor index to see if they made any other conveyances that may potentially screw up title