Recording System & Title Wrap-Up Prof. David Glazier Feb 13, 2007 PropertyProperty

Today’s Class Title registration (Torrens system) *** Marketable title and curative acts *** Title problems Recording System problems Announcements

Title Registration-Torrens System*** Developed by Robert Torrens in South Australia in 1858 Govt guarantees title vice merely recording documents Certificate of title is dispositive - Based on ships’ registry What if there are existing ownership claims?

Torrens Implementation *** v.

Torrens System in the United States *** W idely used in Commonwealth nations Initial popularity in U.S. has faded - Il repealed after fraud/administrative problems - 22 states once recognized, only 10 now -- Co, Ga, Hi, Ia, Ma, Mn, NC, NY, Oh, Wa -- Optional use in local jurisdictions

Marketable Title Acts “Quiet title” by voiding old claims - typical period is 30 or 40 years - interests can be preserved by rerecording Generally considered to limit title search period - BUT may contain exceptions not voided -- Government claims -- Physical easements Enacted in approx. 1/3 of U.S. states

Curative Acts *** Limit period in which technical defects can be raised to invalidate recorded deeds Period normally less than marketable title acts - e.g., 21 years in Ohio Representative defects covered - defective notarization - lack of seal (where still required)

Title Problem A careful search of grantee and grantor indexes reveals: 1875 – U.S. govt granted Blackacre to D&RG RR 1920 – D&RG RR conveyed Blackacre to John Smith 1945 – John Smith conveyed Blackacre to Mr. & Mrs. Tom Jones 1976 – Mrs. Tom Jones conveys Blackacre to James Brown 2007 – James Brown is trying to sell property Can Brown convey “marketable title?” Where else would you search?

What Kind of Statute is This? All deeds, powers of attorney, agreements, or other instruments in writing conveying, encumbering, or affecting the title to real property... may be recorded in the office of the county clerk and recorder of the county where such real property is situated;.... No such unrecorded instrument or document shall be valid against any person with any kind of rights in or to such real property who first records and those holding rights under such person, except between the parties thereto and against those having notice thereof prior to acquisition of such rights. This is a race-notice recording statute....

Recording Problem John Denver deeds his Aspen home to Annie as a gift. He then sells the house to Bob Dylan who does not knows of Annie’s deed. Annie then records. Who prevails between Bob and Annie? What if Bob Seger is selling a house in the Hollywood Hills after having given it to Betty Lou?

Reading a Recording Act What type of jurisdiction is it? - race - notice - race-notice Who is protected by statute? - bonafide purchaser - anyone who records

Recording Acts – Protected Persons O gives Blackacre to A A records O Sells Blackacre to B B records Who prevails? O gives Blackacre to A A does not Record O sells Blackacre to B A records B records Who prevails?

What Kind of Statute is This? The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records... (1) An instrument that transfers an immovable...

Recording Problem O sells Bayouland to A on Jan 1. A records Jan 30. O sells Bayouland to B on Jan 28. B records that day. Who prevails in Louisiana? Who’s “innocent” here? How does court decide between two “innocents?”

Recording Problem O sells Blackwater to A who does not record. O then sells Blackwater to B, who is not aware of the earlier conveyance and does not record. Who owns Blackwater in a race jurisdiction? Who owns Blackwater in a notice jurisdiction? Who owns Blackwater in a race-notice jurisdiction

What Kind of Statute is This? No deed of conveyance for lands, in whatever manner or form drawn, shall be good and available in law, as to strangers, unless it is... registered by the register of the county where the land lies. All deeds so executed shall be valid and pass estates in land, or right to other estates, without livery of seisin... or other ceremony in the law whatever. This one is rather hard!

Recording Problem Colonel Tom Parker sells Graceland to Elvis. Elvis does not record. Several years later, Parker sells Graceland to Paul Simon. Simon does not record. Who owns Graceland between Elvis and Paul? What if Paul recorded? Why should Paul bother to record?

Recording Problem (1) O sells Blackacre to A. A does not record. (2) A sells Blackacre to X. X records. (3) O sells Blackacre to B. B records. Who owns Blackacre between X and B? Race jurisdiction: Notice jurisdiction: Race notice jurisdiction: Why do courts think this is fair?

Upcoming Reading No reading for Thursday – Lecture on Nuisance law Resume normal office hours today - 2:00 – 3:30 No office hours this Thursday No class or office hours 2/22

Questions?