Recording Acts Flashcards
What are Recording Acts and the Record system
- Recording acts are system of identifying who owns what interest in land; provides protection for later purchasers
- Note..No where is recording required for the validity of a title
What is typically not recorded?
1) Adverse possession, implied easements, etc.
2) Thefore fore….its Important to do a chain of title search as well as an actual physical inspection (constructive inquiry notice)
Common Law rule for recording
1) First in time, first in right
2) Later legal title prevails over earlier equitable title
3) Legal always over equitable
What are the three types of recording statutes
1) Race statutes-
2) Race/Notice-
3) Strict Notice
What are race statutes?
1) First buyer to record gets it; later buyer prevails if first to records: legal title over equitable title
2) Minority
What are Race Notice Statutes
1) Later purchaser prevails if first to record and no actual notice of earlier purchaser at time of conveyance
i. Only express notice or actual knowledge
What are Strict Notice Statutes
1) Later purchaser prevails if no actual or constructive record notice at time of conveyance
* Constructive record notice: reasonable chain of record search would put later purchaser on notice of previous record
* Must be within the recording of that interest must be withing the recorded chain of title
What is interests must typically recorded to be protected
Interests that must recorded to be protected
1) Varies from state to state
2) Any Conveyance of any interest in land
3) Statutes only protect bona fida purchasers (not donees, heirs)
What is the Operation of Chain of Title Search?
1) Start backwards in name of Seller Grantee indices
2) Go backwards until Root of Title
3) Go up chain of title in Grantor INDEX until at present interest
NOTE: here is where you can see if seller sold to two people
How does fraud effect passing of titles?
(i) Forged deeds are void (no pass of title)
(ii) Fraud in the inducement passes no title->voidable by grantor unless grantee then passes title to bona fide purchaser
(iii) Fraud in execution does not pass title
(iv) Wrongful conversion in personal property=wrongful converter, acquires no title and neither does good faith purchaser
Buyer’s remedies after closing for defective conditions
Seller’s liability limited by caveat emptor (buyer beware)
- typically a seller after closing is not liable for latent defects in the condition of the premises
- Most states do not have mandatory affirmative disclosure laws
- Implied warranty of habitability
Buyer’s remedies after closing for defective conditions
Seller, Broker, or Builder Vendor liability
May be liable for breach of express warranties in purchase contract related to condition of premises
1. Implied warranty of habitability
Buyer’s remedies after closing for defective conditions
Builder-Vendor (implied warranty of fitness and habitability)
(i) Most states imply a warranty of fitness in purchase contracts for new homes sold by a builder-vendor-this implied warranty typically extends to material latent defects in the premises-and buyer may recover damages for later discovered material defects
(ii) In most states this implied warranty of habitability only runs for one year after closing and does not run with the land to subsequent purchasers
(iii) Implied warranty could be waived
(iv) Buyer can bring a tort suit in most states (neg. or strict liability) for injuries
What are other claims that a buyer can bring after closing for defective condition of real estate premises?
- Knowing misrepresentation/fraud claims= relates to property damages due to latent material defect (something not discoverable by physical inspection)
- Courts hold that tort claims cannot be waived or disclaimed by the provisions of a purchase contract
