Recording (real estate)

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The vast majority of states in the United States employ a system of recording legal instruments (otherwise known as deeds registration) that affect the title of real estate as the exclusive means for publicly documenting land titles and interests. This system differs significantly from land registration systems, such as the Torrens system, that have been adopted in a few states. The principal difference is that the recording system does not determine who owns the title or interest involved, which is ultimately established through litigation in the courts. The system provides a framework for determining who the law will protect in relation to those titles and interests when a dispute arises.

Contents

Creation

The recording systems are established by state statute. They usually provide for the office of a recorder in each county or other jurisdiction. The names of these offices are usually the "Recorder of Deeds" or something similar. State statutes also prescribe the following elements:

  1. What instruments are entitled to be recorded, usually deeds, mortgages (whether or not in the form of deeds of trust), leases (usually longer term varieties), easements, and court orders. There is generally added to these a catch-all category of "other instruments affecting the title to real estate". These statutes also list technical requirements, such as whether acknowledgements before a notary public are required (the great majority) or witnesses must also sign the document (rarer).
  2. The effect of failure to record. This is usually stated: Deeds (etc.) that are not recorded are void as against purchasers for valuable consideration without knowledge of their existence. [1]
  3. The procedure for indexing instruments presented for recording.
    • Grantor-grantee indices. Overwhelmingly, this is the creation of an index based on the names of the grantors (the persons conveying the interest) and of the grantees (those receiving the interest). This is called the grantor-grantee index. Also included are the dates the instruments are recorded. Many, if not most, such systems keep separate indexes for deeds and mortgages. There are also systems for indexing judgment liens in which the judgment debtor and the judgment creditor are listed in the same way as grantors and grantees, respectively.
    • Tract indices. A few state laws require the creation of a tract index. [2] This requires the employees in the recorder's office to make a determination of which property is affected by the instrument and to index it by the legal description of that property. This is not widely practiced because of the increased cost, the greater probability of error and, possibly, the abstractors' and title insurers' lobbies in the legislatures. (Abstractors and title insurers have spent vast amounts of money creating "title plants" that reindex the recorded documents according to the tracts they affect for greater efficiency in title searching.)

Title searching

Grantor/grantee

A grantor/grantee title search attempts to locate records by searching the parties listed on a recorded instrument. One approach to conducting a full grantor/grantee title search starts by searching the grantor index in the County records and determining the name of the first recorded owner of title. This is usually the sovereign, which is the federal government or the Crown of the nation which owned a former colony now located within the United States. The search finds the grant from the sovereign to the first grantee. This is usually in the form of a patent. Then, the grantee's name is searched in the grantor index to find the deed by which it has subsequently conveyed the title, and so forth until no more grants are found. Liens or encumbrances granted by any of the parties shown on recorded instruments are also found in the search. Though theoretically accurate, this approach has practical difficulties due to there often being numerous grants from the sovereign. Therefore, an alternative method is to reverse the process, i.e. to search backward in the grantee index. This is done by beginning with the name of the person or entity who is thought to own the land to find the grantor to it. Then the grantee index is searched again to find the source of that grantor's title, and so on until you reach the grant from the sovereign. These linkages from grantor to grantee are called the "chain of title". The last grantee found is the "record title holder". [3]

Geographic index

In municipalities with a large population and states that do not support tract indices, the Grantor/Grantee method can be time-consuming and difficult altogether due to common names within the index. In these municipalities, a geographic index is often created to aid in title searching. In this system, each document is posted in both a Grantor and Grantee index in addition to being posted to indexes describing attributes of the property's location such as a lot number, subdivision name or Parcel Identification Number (PIN). With a functioning geographic index, a search can be done with a combination of a grantor/grantee, legal description or PIN search.

How the system works

The record title holder is not necessarily the actual owner of the land if there are previous unrecorded deeds to it to others. The principal legal theory is that once a person has conveyed the title to his or her property (or some aspect of it) to someone, he or she has nothing left to transfer to any subsequent person. However, as a result of the various state recording acts, the courts will protect a bona fide purchaser who pays valuable consideration and does not have knowledge of the prior unrecorded deed from the claims of a prior grantee under that deed. The same is true respecting most types of unrecorded liens or encumbrances. For example, purchasers of the land from the record title holder who pay valuable consideration and have no knowledge of unrecorded mortgages will be protected against those mortgages by the courts. All of this flows from the statement in most recording statutes that the unrecorded instruments are void against such purchasers. Also, U.S. law permits the bankruptcy trustee of a debtor to set aside property interests the debtor has conveyed if a bona fide purchaser of the real estate, who properly perfected its interest, would be protected against the conveyance. [4] Therefore, it behooves purchasers and mortgage lenders to record their deeds or mortgages, respectively, to prevent this outcome.

Once an instrument affecting the title to real estate has been recorded, the law holds that everyone is deemed to know of its existence, even if they have not searched the records in the recorder's office. This is the doctrine of "constructive notice" and it is nearly universal in the various states of the U.S. So, for example, after a deed or mortgage has been recorded by someone in the chain of title, no subsequent purchaser will be protected against it. The reason is that the recording laws deem everyone to know of its existence once it is recorded.

Effect of the recording act

Each U.S. state has a recording act, a statute which dictates the legal procedure by which an individual claiming an interest in real property (real estate) formally establishes their claim to that property. The recordation of property rights becomes particularly significant where an unscrupulous dealer in land purports to sell the same tract of land multiple times. With other kinds of property, the first buyer would be the owner of the property, and later owners would have no interest in the property and would instead have a cause of action against the original seller for fraud. With real property, however, the first buyer is not necessarily the owner, depending on the kind of statute under which the recording of such property interests operates. There are three basic kinds of statutory schemes in recording acts: race, notice, and race/notice.

Even though a recording act does not require recordation, the law does create strong incentive for a buyer to record. Recordation provides constructive notice to any subsequent purchasers that a prior conveyance occurred and therefore protects the prior purchaser in the event of a subsequent conveyance.

Race statutes

Under a race statute, whoever records first wins. Thus, if Oscar purports to sell a piece of land to Alice for $100,000, and the next day purports to sell exactly the same piece of land to Bob for another $100,000, then whichever of the two buyers is the first to reach the recording office and have the sale recorded will be deemed the owner of the property. Thus, if Bob is the first to record the conveyance, he will be the owner even if he knew about the prior conveyance to Alice. Race statutes are extremely rare because it is generally viewed as unfair to protect a party who had actual notice of a prior conveyance. Currently, Delaware, North Carolina, and Louisiana are the only jurisdictions where a race statute is in effect. The benefit of a pure race statute is that it encourages all grantees to record their interest quickly.

Notice statutes

Under a notice statute, a subsequent purchaser for value wins if, at the time of conveyance, that subsequent purchaser had no actual or constructive notice of the prior conveyance. In short, a subsequent bona fide purchaser wins. Thus, if Oscar purports to sell a piece of land to Alice for $100,000, and the next day purports to sell exactly the same piece of land to Bob for another $100,000, then Bob will own the land so long as he was not aware of the prior sale to Alice. However, note that if Alice records her interest before Bob's purchase, this recordation will be deemed to give Bob constructive notice. If Bob purchases the land without notice, and Alice then records her prior purchase before Bob records his own purchase, then Bob will still prevail in ownership of the land. The benefit of a pure notice statute is that it encourages Alice to record quickly, but if Alice records after Bob's purchase, Bob has only limited incentive to record his conveyance immediately. This can leave the land records incomplete for an indeterminate amount of time and could cause Alice to make improvements of which she might be divested by Bob's later recorded deed.

Currently, Alabama, Arizona, Connecticut, Florida, Illinois, Iowa, Kansas, Missouri, New Hampshire, New Mexico, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, Vermont, and West Virginia are the jurisdictions where a notice statute is in effect.

Race/notice statutes

Under a race/notice statute, a subsequent purchaser for value wins if (1) at the time of conveyance, that subsequent purchaser had no actual or constructive notice of the prior conveyance, and (2) the subsequent purchaser records before the prior purchaser. In short, a subsequent purchaser in good faith wins only if he records before the prior purchaser does. In this type of system, if Oscar purports to sell a piece of land to Alice for $100,000, and the next day purports to sell exactly the same piece of land to Bob for another $100,000, then Bob will own the land only if he was not aware of the prior sale to Alice, and if Bob actually records his interest before Alice does. In the hybrid race/notice statute, all grantees have a strong incentive to record early, thereby making the land records complete.

Currently, Alaska, Arkansas, California, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Kentucky, [5] Maine, [6] Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio (regarding mortgages, Ohio follows the race statute), Oregon, Pennsylvania (regarding mortgages, Pennsylvania follows Race), South Dakota, Utah, Washington, Wisconsin, [7] and Wyoming are the jurisdictions where a race/notice statute is in effect.

Limitations

As can be seen from above, there are limitations to the protection of most recording laws, some of which are noted below.

Those who pay no valuable consideration for their interest in the property are not protected against unrecorded interests. Examples are those getting the property as a gift and heirs. Also, those who purchase ownership interests in the owners of the property, such as shares of stock in a corporation owning the land, have not purchased an interest in the property itself and so are unprotected. Also, recording laws generally do not protect purchasers against real estate taxes because notice of them is usually not required to be recorded for them to be effective. Finally, certain classes of nongovernmental liens such as mechanic's liens are often made effective for a certain period of time even if they are unrecorded.

See also

Related Research Articles

In property law, title is an intangible construct representing a bundle of rights in (to) a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.

In common law and statutory law, a life estate is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person. The owner of a life estate is called a "life tenant".

A mortgage is a legal instrument of the common law which is used to create a security interest in real property held by a lender as a security for a debt, usually a mortgage loan. Hypothec is the corresponding term in civil law jurisdictions, albeit with a wider sense, as it also covers non-possessory lien.

This aims to be a complete list of the articles on real estate.

In common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.

Title insurance is a form of indemnity insurance predominantly found in the United States and Canada which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans. Unlike some land registration systems in countries outside the United States, US states' recorders of deeds generally do not guarantee indefeasible title to those recorded titles. Title insurance will defend against a lawsuit attacking the title or reimburse the insured for the actual monetary loss incurred up to the dollar amount of insurance provided by the policy.

<span class="mw-page-title-main">Foreclosure</span> Legal process where a lender recoups an unpaid loan by forcing the borrower to sell the collateral

Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan.

In United States law, a lis pendens is a written notice that a lawsuit has been filed concerning real estate, involving either the title to the property or a claimed ownership interest in it. The notice is usually filed in the county land records office. Recording a lis pendens against a piece of property alerts a potential purchaser or lender that the property’s title is in question, which makes the property less attractive to a buyer or lender. Once the notice is filed, the legal title of anyone who purchases the land or property described in the notice is subject to the outcome of the lawsuit.

Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the conclusive evidence of title of the person recorded on the register as the proprietor (owner), and of all other interests recorded on the register.

Nemo dat quod non habet, literally meaning "no one can give what they do not have", is a legal rule, sometimes called the nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. It is equivalent to the civil (continental) Nemo plus iuris ad alium transferre potest quam ipse habet rule, which means "one cannot transfer to another more rights than they have". The rule usually stays valid even if the purchaser does not know that the seller has no right to claim ownership of the object of the transaction ; however, in many cases, more than one innocent party is involved, making judgment difficult for courts and leading to numerous exceptions to the general rule that aim to give a degree of protection to bona fide purchasers and original owners. The possession of the good of title will be with the original owner.

<span class="mw-page-title-main">Security interest</span> Legal right between a debtor and creditor over the debtors property (collateral)

In finance, a security interest is a legal right granted by a debtor to a creditor over the debtor's property which enables the creditor to have recourse to the property if the debtor defaults in making payment or otherwise performing the secured obligations. One of the most common examples of a security interest is a mortgage: a person borrows money from the bank to buy a house, and they grant a mortgage over the house so that if they default in repaying the loan, the bank can sell the house and apply the proceeds to the outstanding loan.

A security agreement, in the law of the United States, is a contract that governs the relationship between the parties to a kind of financial transaction known as a secured transaction. In a secured transaction, the Grantor assigns, grants and pledges to the grantee a security interest in personal property which is referred to as the collateral. Examples of typical collateral are shares of stock, livestock, and vehicles. A security agreement is not used to transfer any interest in real property, only personal property. The document used by lenders to obtain a lien on real property is a mortgage or deed of trust.

In real estate business and law, a title search or property title search is the process of examining public records and retrieving documents on the history of a piece of real property to determine and confirm property's legal ownership, and find out what claims or liens are on the property. A title search is also performed when an owner wishes to sell mortgage property and the bank requires the owner to insure this transaction.

<span class="mw-page-title-main">Tax sale</span>

A tax sale is the forced sale of property by a governmental entity for unpaid taxes by the property's owner.

A freehold, in common law jurisdictions such as England and Wales, Australia, Canada and Ireland, is the common mode of ownership of real property, or land, and all immovable structures attached to such land.

A deed of trust refers to a type of legal instrument which is used to create a security interest in real property and real estate. In a deed of trust, a person who wishes to borrow money conveys legal title in real property to a trustee, who holds the property as security for a loan (debt) from the lender to the borrower. The equitable title remains with the borrower. The borrower is referred to as the trustor, while the lender is referred to as the beneficiary.

The Home Equity Theft Prevention Act is a New York State law passed on July 26, 2006, to provide homeowners of residential property with information and disclosures in order to make informed decisions when approached by persons seeking a sale or transfer of the homeowner's property, particularly when homeowners are in default on their mortgage payments or the property is in foreclosure.

The shelter rule is a doctrine in the common law of property under which a grantee who has received an interest in property from a bona fide purchaser will also be protected as a bona fide purchaser, even if the grantee would not legally qualify for this status. The grantee is "sheltered" from other claims by the grantor's status as an actual bona fide purchaser.

Landmark National Bank v. Kesler is a Kansas Supreme Court case involving the standing, rights, and interests of Mortgage Electronic Registration Systems (MERS). On August 28, 2009, the court held that all indispensable parties must be identified and that the actual lender identified in foreclosure actions to protect each party's rights. The decision also addressed the role MERS plays in clouding the ownership of the promissory note and title to the property.

<i>Latec Investments Ltd v Hotel Terrigal Pty Ltd</i> Judgement of the High Court of Australia

Latec Investments Ltd v Hotel Terrigal Pty Ltd is a 1965 property law decision of the High Court of Australia. It contains a discussion of the principles upon which the priority of competing equitable interests in land is to be determined.

References

  1. ↑ See, for example, California, Civil Code Sec. 1214; Colorado, CRS Sec. 38-35-109; Florida, Florida Stats. Title XL Chapter 695.01(1); Illinois, 765 ILCS5/30; New York, NYS Consolidated Laws, Art. 9 Sec. 291; and Texas, Property Code Ch. 13, Sec. 13.001(a).
  2. ↑ As of 1988, examples are Iowa, Louisiana, Nebraska, North Dakota, Oklahoma, South Dakota, Utah, Wisconsin and Wyoming - Kratovil and Werner, Modern Real Estate Law, 9th Ed., Prentice-Hall, Inc., (1988) Sec. 9.09
  3. ↑ For further explanation and examples, see Kratovil and Werner, Modern Real Estate Law, 9th Ed., Prentice-Hall, Inc., (1988) Sec. 9.08
  4. ↑ U.S. Bankruptcy Code, 11 U.S.C. 544(3). The usual reason why a bona fide purchaser would be protected is because it has no notice of the conveyance because it has not been recorded. Also, a lack of prompt recording of the transfer may create an unfair preference under some circumstances pursuant to 11 U.S.C. 547.
  5. ↑ Hays v. Nationstar Mortg. LLC, 510 S.W.3d 327, 2017 Ky. App. LEXIS 1 (Ky. Ct. App. 2017)
  6. ↑ "Title 33, §201: Priority of recording". legislature.maine.gov. Retrieved 2021-12-30.
  7. ↑ "Wisconsin Legislature: 706.08(1)". docs.legis.wisconsin.gov. Retrieved 2023-09-13.
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