Key Takeaways
- Recording acts protect subsequent purchasers for value who take without notice
- Three types: Race (first to record wins), Notice (BFP without notice wins), Race-Notice (first BFP to record wins)
- Notice can be actual, constructive (recorded), or inquiry (duty to investigate)
- Title insurance protects against defects in title as of the policy date
- Adverse possession requires open, notorious, actual, exclusive, hostile possession for statutory period
Recording Acts and Title
The Recording System
At common law, "first in time, first in right" determined priority. Recording acts modify this to protect certain subsequent purchasers.
Types of Recording Statutes
1. Race Statute (Rare)
"First to record wins."
Priority goes to whoever records first, regardless of notice.
Example language: "No conveyance is valid against any subsequent purchaser unless recorded."
Effect: Even a purchaser with actual knowledge of a prior deed prevails by recording first.
2. Notice Statute
"Last BFP without notice wins."
A subsequent bona fide purchaser (BFP) prevails over a prior unrecorded interest if the BFP had no notice at time of purchase.
Example language: "No unrecorded conveyance is valid against a subsequent purchaser for value without notice."
Effect: Recording not required to prevail—just lack of notice at purchase time.
3. Race-Notice Statute (Most Common)
"First BFP to record wins."
To prevail, a subsequent purchaser must:
- Be a BFP (purchaser for value without notice), AND
- Record first before the prior purchaser records
Example language: "No conveyance is valid against a subsequent purchaser for value without notice who first records."
Bona Fide Purchaser (BFP)
Requirements:
- Purchaser: Donees, heirs, and devisees are NOT purchasers
- For value: Paying more than nominal consideration
- Without notice: At time of purchase
Shelter Rule
A person who takes from a BFP gets the BFP's protection, even if the taker themselves had notice or didn't pay value.
Types of Notice
| Type | Description |
|---|---|
| Actual Notice | Purchaser actually knew of prior interest |
| Constructive Notice | Prior interest properly recorded in chain of title |
| Inquiry Notice | Facts would lead reasonable person to investigate |
Constructive Notice Issues
Chain of Title Problems:
| Problem | Effect |
|---|---|
| Wild deed | Recorded but not in chain of title (grantor never acquired record title) |
| Late recorded deed | Recorded after grantor conveyed to another |
| Early recorded deed | Recorded before grantor acquired title |
Most courts: Wild deeds and deeds outside the chain do NOT provide constructive notice.
Inquiry Notice
Purchaser has duty to investigate when:
- Possession by someone other than seller
- References to unrecorded instruments
- Visible easements or encroachments
Title Assurance
1. Recording System
Public records establish priority and provide notice.
2. Title Search
Examines public records to determine:
- Current owner
- Encumbrances (mortgages, easements, liens)
- Chain of title problems
3. Title Insurance
Owner's Policy:
- Protects buyer against title defects
- Coverage = purchase price
- One-time premium at closing
Lender's Policy:
- Protects mortgagee
- Coverage decreases as loan is paid
Coverage includes:
- Defects in title as of policy date
- Forged instruments in chain
- Unrecorded liens that weren't found
Exclusions (typical):
- Defects created after policy date
- Matters disclosed in policy exceptions
- Government regulations (zoning)
- Visible easements not recorded
4. Warranty Deeds
Present Covenants (breached at delivery, SOL runs from delivery):
- Seisin: Grantor owns the estate purported to convey
- Right to convey: Grantor has power to transfer
- Against encumbrances: No undisclosed encumbrances
Future Covenants (breached when disturbed, SOL runs from disturbance):
- General warranty: Grantor will defend against all claims
- Quiet enjoyment: Grantee won't be disturbed by paramount title
- Further assurances: Grantor will execute necessary documents
BAR EXAM CRITICAL RULES
Exact Statutory Language (Memorize)
| Type | Key Language | Key Identifier |
|---|---|---|
| Race | "No conveyance shall be valid against purchasers but from the time of registration" | Does NOT mention "notice" or "good faith" |
| Notice | "Conveyance not valid against subsequent purchaser for value without notice" | Mentions "without notice" but does NOT require recording to prevail |
| Race-Notice | "Not valid against subsequent purchaser for value without notice whose conveyance is first recorded" | Mentions BOTH "without notice" AND "first recorded" |
Value Requirement - Critical Details
What Constitutes "Value":
- Full purchase price paid ✓
- Partial payment before notice - Courts split:
- Minority: Partial payment NOT sufficient
- Majority: Purchaser protected pro tanto (proportionally)
NOT Value:
- Love and affection
- Nominal consideration ($1, $10)
- Gifts, devises, inheritances
Who is NOT Protected as BFP:
| Category | Why Not BFP |
|---|---|
| Donees (gift recipients) | Did not pay value |
| Heirs (intestate succession) | Did not pay value |
| Devisees (will recipients) | Did not pay value |
| Judgment creditors | Did not voluntarily pay value |
| Tax lien creditors | Did not voluntarily pay value |
Shelter Rule - Complete Statement
A person who takes from a BFP gets the BFP's protection, even if the taker:
- Had notice of the prior interest
- Did not pay value (gift, devise)
- Would not otherwise qualify as a BFP
Exceptions to Shelter Rule:
- Deed washing prohibited: Cannot convey to third party and take reconveyance
- Fraud: Person who commits fraud cannot shelter
- Original wrongdoer: Person party to original fraud cannot later shelter
Wild Deed - Complete Analysis
A wild deed is recorded when grantor never had record title.
Effect: Does NOT provide constructive notice to subsequent purchasers.
Example: O conveys to A (not recorded). A conveys to B (B records). B's deed is "wild" because A never had record title. C, a subsequent purchaser from O, has NO constructive notice of B's deed. C prevails over B.
Forged Deed = VOID (Critical Rule)
| Type | Effect | BFP Protection? |
|---|---|---|
| Forged deed | VOID - transfers NOTHING | NO - even BFP takes nothing |
| Fraud in inducement | VOIDABLE | YES - BFP may prevail |
| Undelivered deed | VOID | NO - recording doesn't cure |
Recording does NOT cure forgery. Original owner prevails against everyone in chain.
Inquiry Notice - All Triggers
Purchaser has duty to investigate when:
- Possession by someone other than seller
- References in documents to unrecorded instruments
- Visible easements (pathways, utility lines, driveways)
- Encroachments visible on property
- Quitclaim deed - Some courts: triggers inquiry about why no warranty
Lis Pendens: Notice of pending lawsuit; when recorded, provides constructive notice.
Estoppel by Deed (After-Acquired Title)
When grantor conveys property they don't own, and later acquires title, the after-acquired title automatically passes to the prior grantee.
Example: A conveys Blackacre to B (A doesn't own it). A later buys Blackacre. Title automatically passes to B.
Merger Doctrine (Critical for Contracts)
After closing, the deed merges with the contract.
Effect: Buyer can NO LONGER sue on implied covenant of marketable title—must sue on deed covenants (if any).
Quitclaim Deed Problem: If buyer accepts quitclaim with no covenants, buyer has NO recourse after closing.
Types of Deeds - Complete Comparison
| Deed Type | Warranties | Protection Level |
|---|---|---|
| General Warranty | All 6 covenants against ALL title defects ever | Highest |
| Special (Limited) Warranty | 6 covenants but ONLY during grantor's ownership | Middle |
| Quitclaim | NO warranties whatsoever | None |
Marketable Title (Implied in Every Contract)
Title reasonably free from doubt in both fact and law.
What Renders Title Unmarketable:
- Chain of title defects (adverse possession title, defective execution)
- Encumbrances (mortgages, liens, easements, restrictive covenants)
- Significant encroachments
- Existing zoning violations
Adverse Possession
Title to land can be acquired by possession that is:
Requirements (OCEAN):
- Open and notorious: Visible to reasonable owner
- Continuous: Uninterrupted for statutory period
- Exclusive: Not shared with owner
- Actual: Physical possession
- N/Hostile: Without permission, adverse to true owner's interest
Tacking
Successive periods by adverse possessors in privity may be combined.
Disabilities
If true owner has disability (minor, insane) when AP begins, statutory period doesn't run until disability removed.
Color of Title
Possession under defective deed may extend AP claim to entire parcel described (not just area actually possessed).
O conveys to A, who does not record. O then conveys the same property to B, who has actual knowledge of the prior conveyance to A. B records first. The jurisdiction has a race-notice statute. Who prevails?
Buyer purchases property and discovers an unrecorded easement that the seller knew about but didn't disclose. The property was conveyed by general warranty deed. Which covenant has been breached?
A has been using a strip of B's land as a driveway for 20 years, which exceeds the statutory period for adverse possession. A recently discovered that B had given A oral permission to use the driveway when A first moved in. Can A claim adverse possession?
O owns Blackacre in fee simple. On January 10, O conveys Blackacre to A for $100,000. A does not record. On February 15, O conveys Blackacre to B for $120,000. B has no knowledge of the prior conveyance to A. On February 20, A records her deed. On February 25, B records his deed. The jurisdiction has a race-notice statute providing: "No conveyance shall be valid against a subsequent purchaser for value, without notice, whose conveyance is first recorded." Who has title to Blackacre?
O owns Greenacre in fee simple. O conveys Greenacre to A, who does not record. A then conveys to B for $80,000, and B immediately records his deed. Two years later, O (who still appears as record owner) conveys Greenacre to C for $95,000. C conducts a proper title search, finds no recorded conveyance from O, and has no actual knowledge of the prior conveyances. C records immediately. The jurisdiction has a race-notice statute. In a dispute between B and C, who prevails?
O owns Whiteacre. O conveys to A, who does not record. O then conveys to B for $150,000. B has no actual, constructive, or inquiry notice of A's interest. B records. The jurisdiction is a notice jurisdiction. B then makes a gift of Whiteacre to her daughter D by warranty deed. D has actual knowledge of A's prior unrecorded deed from conversations at a family dinner. A then brings an action to quiet title against D. Who prevails?