Recording Acts

MBEMax wiki article — paired with the Real Property question set on mbemax.com.

One-line summary

Recording acts resolve priority fights between successive grantees of the same interest — at common law, first in time wins; recording statutes change that outcome when a later buyer qualifies as a protected BFP.

Mnemonic

R-N-P — Race, Notice, race-Pnotice.

Picture a three-leg relay: one leg asks who crossed the line first (Race), one asks who ran in the dark (Notice), one asks both (R-N, the hybrid).

The three statute types

1. Race — whoever records first wins, even if the later grantee had actual notice. Rare today (NC, LA, DE partial).
2. Notice — a later BFP who takes without notice wins, even if she never records. She is "protected against the unrecorded" interest.
3. Race-notice — a later BFP wins only if she takes without notice AND records first.

Spot the statute: language "in good faith" or "without notice" = notice; "first to record" added to the without-notice language = race-notice; pure "first recorded" = race.

Who is a protected BFP?

A bona fide purchaser is a grantee who:

1. Takes for valuable consideration (not mere love-and-affection, not as a donee, devisee, or heir unless the shelter rule applies); AND
2. Without notice of a prior conflicting claim — actual, record (constructive), or inquiry notice.

Notice types:

• Actual notice. Real knowledge.
• Record notice. Prior interest is in the buyer's chain of title. Wild deeds (recorded outside the grantor-grantee chain) do NOT give record notice.
• Inquiry notice. Facts a reasonable buyer should investigate: physical possession by another, reference to an unrecorded instrument, visible adverse uses.

The shelter rule

A grantee who does not herself qualify as a BFP may still prevail if her grantor was a BFP — the grantor's BFP status "shelters" her. Prevents a prior claimant from defeating the protection by picking off a donee downstream. Does NOT apply to the original wrongdoer who regains the property.

NCBE loves to test

• Statute identification. Read the call for "without notice" (notice) vs. "without notice and records first" (race-notice). Misreading collapses the answer.
• Wild deed. A deed recorded when the grantor's own chain of title is not yet of record gives no constructive notice. Classic fact pattern: O → A (unrecorded), A → B (B records), then O → C. C is not charged with record notice because the A → B deed is wild when C searches O's name.
• Estoppel by deed + recording acts. When a grantor later acquires title after purporting to convey, the after-acquired title automatically passes; but later BFPs who search only from the date of acquisition can defeat the earlier grantee if jurisdiction uses a standard grantor-grantee index.
• Quitclaim deeds. Split of authority — most states allow quitclaim grantees to qualify as BFPs if they otherwise meet the requirements; some treat the quitclaim as putting grantee on inquiry notice.
• Possession as inquiry notice. Tenant in possession under unrecorded lease puts buyer on inquiry notice even though nothing is recorded.
• Donees, devisees, heirs. Not purchasers for value. They take subject to prior unrecorded interests (absent shelter).

Fast hypos

Hypo 1 (Race-notice). O → A (unrecorded). O → B for value; B has no notice and records. O → A records next. B wins — took without notice and recorded first.

Hypo 2 (Notice). O → A (unrecorded). O → B for value; B has no notice but does not record. A records. Who wins? B wins — under a notice statute, the later BFP wins even without recording.

Hypo 3 (Wild deed). O → A (A records). A → B (B records but O → A has been lost from the record because A's deed was never indexed under O). O → C for value; C searches O's name and finds nothing. C wins against B — A-to-B is wild relative to C's chain.

Hypo 4 (Shelter). O → A (unrecorded). O → BFP (who records). BFP → donee. A records. Donee takes shelter from BFP; beats A.

Case anchors

• Bailey v. Alabama, 219 U.S. 219 (1911) — only distantly relevant as a recording precursor but commonly cited for constructive knowledge principles.
• Sabo v. Horvath, 559 P.2d 1038 (Alaska 1976) — race-notice analysis of wild deed situation (often cited as the classic example).
• Messersmith v. Smith, 60 N.W.2d 276 (N.D. 1953) — defective acknowledgment means deed does not impart constructive notice despite being in the chain.

See also

• Deeds and title
• Adverse Possession
• Mortgages
• Easements

Sources

Restatement (Third) of Property: Mortgages §§ 7.1 et seq.; state recording statutes (see, e.g., N.C. Gen. Stat. § 47-18 (race); Fla. Stat. § 695.01 (notice); N.Y. Real Prop. Law § 291 (race-notice)); Sabo v. Horvath, 559 P.2d 1038 (Alaska 1976); Messersmith v. Smith, 60 N.W.2d 276 (N.D. 1953).