The Recording Act

Exception to the General Rule

A bona fide purchaser (one who subsequently purchases an interest in land without notice of an interest already held by a third party) prevails in a title dispute with a first-in-time claimant.

Race-notice jurisdiction; elements; relevant rules

- a bona fide purchaser is a subsequent purchaser for value without notice of the prior interest who records his or her interest first will prevail over prior unrecorded claimants. The first three elements are the same as required in a notice jurisdiction: subsequent purchaser ... for value ... without notice of the prior interest. Race-notice jurisdictions add a fourth requirement: the subsequent purchaser must be the first one to record.

The Minority Rule for Misspelling of a name in index

A misspelling of a name is a material issue and thus the doctrine of idem sonans cannot be applied to give constructive notice to bona fide purchasers of real property. oBurden is on the grantor, not the title searcher. oProfessor Case likes this minority rule better than the Maj. Rule because the Maj. makes the title search more complicated and expensive, and the minority rule is simpler because all you have to do is get the spelling right.

What are the rights of an intial purchaser against a grantor who assigns the property twice?

An innocent subsequent purchaser without constructive notice as to the rights of an initial purchaser will have rights to the land superior to those of the initial purchaser. When this happens the initial purchaser can go back and try and get some relief from the grantor for assigning the property twice. The grantor can be sued for unjust enrichment and will have to give restitution damages to the initial purchaser.

General Rule

At common law, the person who first acquires an interest in property prevails over anyone who acquires an interest later ("first-in-time rule")

What are Mother Hubbard Clause?

Mother Hubbard Clauses are for when you convey everything else you have an interest to, assuming that you have interests still left to convey. They are sufficient and enforceable. A "Mother Hubbard" clause does not constitute constructive notice to a subsequent innocent purchaser without actual notice.

The Majority Rule for Misspelling of a name in index

The doctrine of idem sonans can be applied thus giving a bona fide purchaser constructive notice when there is a misspelling of a name in the index. oDoctrine of Idem Sonans - though a person's name has been misspelled, the identity of the person will be presumed from the similarity of sounds, between the correct pronunciation and the pronunciation as written. oAbsolute accuracy in spelling names is not required and if the pronunciations are practically alike, the rule of idem sonans is applicable. oThe rule is inapplicable under circumstances where the misspelling is material (as with a property transfer).

What is the purpose of the recording acts?

The recording act in each state defines the precise requirements for bona fide purchaser status. o These acts generally provide that a later purchaser is charged with constructive notice (a/k/a "record notice") of a recorded prior interest in property - even if he or she fails to search the records - and accordingly cannot qualify for protection as a bona fide purchaser.

Race jurisdiction

Under a race recording statute, the first purchaser for value to record prevails. o Priority is determined simply by which purchaser wins the "race" to the recorder's office. Notice is irrelevant. o Two states (Louisiana and North Carolina) are race jurisdictions. Whoever records first wins.

Notice jurisdiction; its elements; relevant rules

in a notice jurisdiction, a subsequent bona fide purchaser of property for value who has no notice (either actual or constructive/record, inquiry) of a prior interest already held by a third party will prevail over that interest immediately upon closing. BFP not required to record to prevail over prior interest. Elements: subsequent purchaser - for value - w/out notice

What are the basic types of recording acts?

notice jurisdictions, race-notice jurisdictions, race jurisdictions

Name and define the types of notice

•Actual - the subsequent purchaser or her agent had actual notice of a prior claim •Constructive: 1) Record - knowledge or notice a purchaser could gain by searching the deed records 2)Inquiry - knowledge or notice based on facts that would cause a reasonable person to make inquiry into the possible existence of an interest in real property