Recording, Security Interests in Real Property, Rights of Support, & Water Rights Flashcards
Purpose of Modern Recording Statutes
To protect subsequent purchasers from the common law rule of “first in time, first in right”
Mechanics of Recording
- clerk files a copy of the deed
- Clerk then index’s the information into Grantee and Grantor index
BFP (Bona Fide Purchaser)
Purchaser for value who takes without notice of the earlier tansaction
Types of Recording Acts
- Notice
- Race
- Race-Notice
Notice Recording
- Protects subsequent grantees who are BFPs
- the sole inquiry here is notice
- Recording is only important here as it imparts notice
Look for the words:
- Without notice
- Good faith
Race Recording
- Notice is irrelevant
- Whoever records first will keep the property
- Subsequent pruchaser does not have to be a BFP
Look for the words “in good faith” or “notice” - if they are not included then it is a race statute
Race-Notice Recording
2 part test - Protects all subsquent grantees who are BFPs provided who:
- Take without notice; and
- are the first to record
Look for the words:
- Without notice
- Good faith
- recorded first (first recorded)
- If this is not present then it is a notice statute
Subseuqent mortgages
Recording Statutes protect subsequent mortgages
Judgement Creditors
Judgement creditors are not protected by recording statutes
Concept of Legal Blinders
When examining chain of title, we look during the period of record ownership by the grantor. Things recorded too early or after title passes are outside that window and thus do not impart constructive (record) notice
Inpsection of the Property
To qualify as a BFP, he must make physical inspection of the property to investigate any unexplained possessions or uses
A security interest
Device used to secure a loan in the property
Reflected by a promissory note given by the borrower and the security interest is reflected in a seperate written instrument
3 types of security interests in real property
- Mortgage
- Deed of Trust
- Land Sale Contract
Mortgage
Given by the debtor (mortgagor) to the creditor (mortgagee).
If loan not paid in full, Sheriff sells land at a court ordered foreclosure sale
An Equitable Mortgage is an absolute deed with a Seperate Promise of Reconveyance
Equitable Mortagages and Sale Leaseback with Options to Repurchase must be foreclosed on like mortages and therefore receive the protections of a mortgage
Deed of Trust
Given by the debtor to a 3rd party trustee who holds the Deed of Trust until the loan is paid in full.
If the loan is not paid in full, the trustee can do one of two things:
- can obtain a court order for foreclosure of the property; or
- can sell the property by himself at a public auction