Recording-Act Choice: Which Purchaser the Statute Protects
A recording statute determines whether a later claimant defeats an earlier, unrecorded interest by asking what the later claimant knew, when the claimant recorded, or both. Start by identifying the statute governing the land; then ask whether the later claimant is within the statute’s protected class, whether the claimant had the required status when acquiring the interest, and whether any required recording occurred in the statutory order.
A notice statute protects a later purchaser for value who takes without notice of the earlier interest. The later purchaser does not have to record first. The relevant question is whether the purchaser lacked notice when the purchaser acquired the interest. A purchaser who learns about the earlier conveyance after closing ordinarily remains protected under a notice statute.
A race statute protects the claimant who records first among competing instruments. Notice is irrelevant under a pure race statute: a later purchaser may prevail by recording first even if the purchaser knew about the earlier conveyance, provided the purchaser falls within the statute’s protected category. The decisive fact is the order of recording.
A race-notice statute combines both requirements. The later purchaser must:
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Take for value and without notice of the earlier interest; and
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Record before the earlier claimant records.
Failure of either requirement defeats the later purchaser’s statutory priority. A purchaser who had notice cannot become protected merely by recording first.
“Notice” includes three forms. Actual notice means direct knowledge. Record notice, also called constructive notice, arises from a properly recorded instrument that a legally adequate title search would reveal. Inquiry notice arises when facts outside the record would cause a reasonable purchaser to investigate further. Notice of a claim is enough; the purchaser need not know every legal consequence of that claim.
The usual protected claimant is a subsequent purchaser for value, including a mortgagee for value when the jurisdiction treats the mortgagee as a purchaser. A donee who receives land gratuitously is ordinarily not protected as a bona fide purchaser. A person who takes from a protected purchaser generally receives the protected purchaser’s priority under the shelter rule, even if the transferee had notice. The shelter rule does not make a void conveyance effective: the transferor must have acquired a legally protectable title or priority in the first place.
| Question | Notice statute | Race statute | Race-notice statute |
|---|---|---|---|
| What claimant is protected? | Later purchaser for value without notice | Qualifying claimant who records first | Later purchaser for value without notice who records first |
| Does notice matter? | Yes, at acquisition | Generally no | Yes, at acquisition |
| Must the later claimant record first? | No | Yes | Yes |
| What defeats the claim? | Notice of the earlier interest | Failure to record first | Notice or failure to record first |
The most important near-miss is notice versus race-notice. Under notice, a later BFP wins without regard to recording order. Under race-notice, that same BFP loses unless the BFP also records first. The other near-miss is race versus race-notice: under race, knowledge ordinarily does not matter; under race-notice, knowledge at the time of conveyance is fatal.
Because this chapter is closed-book, state the three acts and each act’s protected claimant, notice requirement, and recording requirement from memory.
Indexes and Recordation: What a Search Reveals and What Filing Does
A title search is not simply a request to see whether a deed exists. It is a reconstruction of the recorded ownership path and the competing recorded claims affecting it. In a grantor-grantee index, the searcher normally works backward from the current record owner and then forward through each recorded transfer.
A practical search proceeds as follows:
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Identify the person shown as the current record owner.
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Search that person as a grantee to locate the conveyance into that person and identify the prior grantor.
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Move backward through successive grantors until reaching the accepted starting point for the search.
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Search each relevant owner as a grantor to find later conveyances, mortgages, releases, and other recorded instruments affecting the parcel.
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Compare recording dates and determine whether each instrument is connected to the parcel and the chain.
A grantor-grantee index is organized by names. The grantee index helps locate the instrument by which a person acquired title; the grantor index helps locate instruments by which that person later conveyed or encumbered the property. A tract index is organized by parcel, so it can display successive instruments affecting one described parcel without the same name-by-name reconstruction. The index system matters because a purchaser is charged with what a legally adequate search would disclose, not with every paper physically stored in the recording office.
Recordation generally has three distinct effects:
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It can give later purchasers constructive notice of the recorded claim.
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It can establish priority under a race or race-notice statute by providing the legally relevant recording time.
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It can place the instrument in the searchable chain of title.
Recordation does not itself create a valid conveyance. Filing a deed does not cure a forged signature, supply missing delivery, correct a legally defective description, or turn a gratuitous transferee into a purchaser for value. Those validity questions belong to deed doctrine; the recording act governs priority and notice after the underlying instrument is classified.
A recorded instrument normally gives constructive notice only when it was recorded in the legally proper office, was sufficiently identifiable, and is connected to the chain of title. A deed from a person who does not appear to hold title in the recorded chain is a wild deed. For example, if O conveys to A but A’s deed is not recorded, and A then conveys to B whose deed is recorded, B’s deed may be impossible to connect to O in the public chain. A later purchaser searching the records may not receive constructive notice from that disconnected instrument.
A wild deed and a forged deed are different. A wild deed may be a genuine conveyance between the parties but fail to provide constructive notice because the record contains a gap. A forged deed is void because the supposed grantor never signed it; it does not transfer title even if its recording appears to fill a chain.
Improper indexing is another near miss. A deed correctly delivered to the recorder but placed under the wrong name may be treated, depending on the jurisdiction’s recording rules, as failing to give constructive notice to a purchaser whose reasonable search would not locate it. The key distinction is between recordation and discoverability through the legally prescribed index. A deed’s physical presence in the files is not automatically the same as record notice.
Record notice also begins at the relevant time. A deed recorded after a purchaser acquires title generally cannot retroactively give that purchaser notice. Conversely, a properly recorded earlier deed can charge the purchaser even if the purchaser never actually read it. The purchaser cannot avoid constructive notice by refusing to search.
The Broken Chain: Why a Recorded Forgery Transfers Nothing
Trace the chain in two separate stages. First ask whether each link is a legally effective conveyance from someone who held the interest being transferred. Only then apply the recording act to competing valid claims. Do not let the second stage silently repair a failure in the first.
A forged deed is void ab initio. The forged grantor’s signature is not merely defective evidence of consent; the grantor made no conveyance at all. Therefore:
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The forger receives no title.
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A later grantee from the forger receives no title, even if the grantee paid value, acted in good faith, had no notice of the forgery, and recorded first.
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Recording the forged deed does not validate it, create a chain link, or invoke a recording statute’s priority protection.
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A later conveyance by the true owner can transfer the true owner’s title to a valid purchaser.
This is the critical contrast with a deed obtained through fraud in the inducement, duress, or another circumstance that makes the deed voidable rather than void. A voidable deed ordinarily transfers title unless and until it is rescinded, so a qualifying BFP may sometimes prevail. A forged deed never transfers title in the first place. The sibling chapter on deed validity owns the full void-versus-voidable analysis; here, the consequence for the chain is the point.
A forgery in the grantor’s signature is also different from a defect in acknowledgment. If the owner actually signed and delivered the deed but the notarial acknowledgment is false or defective, the instrument may have a recordability or notice problem without necessarily being a forged conveyance. Do not treat every irregularity in the recording paperwork as a forged deed.
Use this order on a fact pattern:
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Identify the claimed source of title.
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Ask whether the deed is valid and whether the grantor actually held the interest.
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Ask whether the deed is connected to the recorded chain or is wild.
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Identify the competing claimant and the applicable recording statute.
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Test the later claimant for value, notice, and first recording as that statute requires.
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Apply the consequence: priority between valid competing claims, but no priority rule can transfer title through a forgery.
Loading diagram…
A state uses a race-notice statute. F forges O’s signature on a deed from O to F and records the deed. F then conveys to P for value; P has no actual knowledge of the forgery and records. O later conveys the parcel by a valid deed to B for value; B knows only that F’s recorded deed appears in the records.
Practice
Which party has the better title to the parcel?
Three Title-Search Checks: Questions That Catch the Hidden Gap
Practice
A jurisdiction has a notice statute. O conveys Blackacre to A, but A does not record. O later conveys Blackacre to B for value, and B has no actual or inquiry notice of A’s deed. B records after acquiring the property. Who has priority?
A grantor-grantee index correctly lists O as grantor and A as grantee, and the recorder properly records and indexes O’s valid deed to A. B later purchases from A for value but never reads the records. What is the effect of A’s recorded deed?
F forges O’s signature on a deed to F and records it. F then conveys to P, who pays value without notice and records. O later signs and delivers a valid deed to A, who records. Who owns the property?
High-Yield Points - ⚡ Biggest Takeaways
Notice protects a later BFP; race protects the first recorder; race-notice requires both no notice and first recording. Recordation gives constructive notice and priority, but it does not cure a void deed or create title. Trace validity and chain connection before applying the recording act: a forged deed transfers nothing.
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