Land Titles and Records

Proving Ownership and Land Recording Systems

Title Records: By investigating the state of title through title records, a potential purchaser can gain assurance at reasonable cost that he or she is acquiring what the seller claims to have for transfer. This promotes transferability

• Recording/Registration law induces the independent publicity of contracts, which makes them verifiable, as a prerequisite for them to attain in rem effects-that is, to convey property rights and not mere contract rights. If they keep their claims private, right holders lose or might RISK losing in rem effects

• A gives to B, then A later transfers to C. C gets nothing, has a claim against A, but A has probably either fled the jurisdiction or is judgment proof (action would be for fraud)

Difference between registration and recordation: registration resolves potential disputes about title ex ante, at the time of the transfer; recordation leaves disputes about title to be resolved ex post, once they arise

• US has a registration system for cars, but NOT for Real Estate (recordation)

• Registration confers in rem, in that the certificate of title is binding on third parties as well as on the parties of the transfer

• Recordation by itself has no binding effect on third parties, it does no more than make available for public use inspection copies of in personam transactions (contracts, deeds, liens, etc.)

Recording Acts

Nearly all localities in the US use recordation: it generates, as a matter of law, constructive notice to all subsequent purchasers in the chain of title

• Thus, recording acts create a powerful incentive for purchasers to file their deeds (and mortagees their mortgages, etc), in order to block possible good faith purchaser claims by subsequent transferees (by giving them notice)

  • Recording acts DO NOT require anything to be recorded, they just create incentives to record

There is usually a Recorder’s Office in every county in a state. They do little if any screening of the documents submitted for recordation.

PERFORMING A TITLE SEARCH

• Every recording office has a Grantee and a Grantor index

• Performing a title search involves tracing the series of transactions from one’s would be transferor back to a “root of title” and then tracing forward

  • First, look in the grantee index for one’s transferor to find the deed by which he took from his predecessor. Then look for that name in the grantee index, and so on

  • Once you have gone back far enough as state law requires, then you repeat the process going forward in time through the grantor index

  • For each of the people on the chain, one must look in the grantor index between the date of execution of the deed to that person AND the date that the deed from that person to the next person was RECORDED

    • Anything outside of this period is said to be “outside the chain of title” and as to such matters the land records do not furnish constructive notice

      • If something is outside the chain of title, the good faith purchaser exception to nemo dat applies

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