About Amerisurv| Contact    
Magazine | Newsletter    
Flickr Photos | Advertise    
HomeNewsNewsletterAmerisurv DirectoryJobsStoreAuthorsHistoryArchivesBlogVideosEvents
 
advertisement


Subscriptions
Product Reviews
Software Reviews
Sponsored By

Continuing Series
     RTN
An RTN expert provides everything you need to know about network-corrected real-time GNSS observations.
Click Here to begin the series,
or view the Article PDF's Here
76-PageFlip Compilation
of the entire series
Test Yourself

Got Answers?
Test your knowledge with NCEES-level questions.
  Start HERE
Meet the Authors
Check out our fine lineup of writers. Each an expert in his or her field.
Wow Factor
Sponsored By


Partner Sites

machinecontrolonline 

LiDAR News

symbianone
lbszone.com

GISuser.com

GeoJobs.biz

GeoLearn

 

Spatial Media LLC properties

Associates

ASPRS

newsnow 

Home arrow Archives   The American Surveyor     

Record Title—Part 2­: Land Record Systems Print E-mail
Written by Chuck Karayan, PS   
Friday, 16 November 2012

A 130Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

This is the second of a three part series examining Record Title which essentially was the subject of both of Curtis Brown's books (Boundary Control and Legal Principles, and Evidence and Procedures for Boundary Location). Black's Law Dictionary defines Record Title as: title to real property evinced by one or more instruments duly entered in the public land records system. In part one we looked at the historical evolution of record title; part two will be a detailed examination of the Record Title Acts; and part three will address problems within the chain-of-title. Every aspect of Record Title discussed can have a direct bearing on the surveyor's professional boundary opinion.

Real Property is the basis of wealth and the "quiet and peaceful ownership" of it is one of the prime purposes of modern Real Property law. In part one we saw how the legislature moved society from oral contracts to written contracts, specifically from title transfers via livery-of-seisin to transfers by deeds. The legislature subsequently established land record systems providing for the recordation and retrieval of those written instruments as well as priority amongst them in the event of conflict.

One of the legislative intents in adopting a recording act was to encourage universal recordation of deeds, thereby avoiding the problem of "innocent third party purchasers". The various state legislatures adopted one of three approaches. No matter which type of statute was adopted, a grantee who fails to record their deed runs the risk of losing their "senior status" to a subsequent ("junior") conveyee. And, no matter which type of statute was adopted (race/notice/race-notice), an unrecorded deed is valid with regard to everyone other than a subsequent conveyee who is protected by the recording act.

A "Notice Statue" focuses on the public knowledge of previous conveyances which is gained by recording them. Under these statutes a subsequent conveyee who is denied such information (by nonrecordation) is given preference over the prior conveyee who caused the problem. A "Race Statute" focuses on the act of recordation (the desired goal). Under these statutes preference is given to the conveyee (prior or subsequent) who records first, i.e., wins the "race to the courthouse". A "RaceNotice Statute" adopts both approaches. Under these statutes preference is given to a subsequent purchaser who records before the prior conveyee.

Fundamentally there are three elements which have a potential affect upon the applicability of the statute: (1) "Notice" or the lack thereof by the subsequent conveyee; (2) The financial relationship between the subsequent conveyee and the grantor; and, (3) the sequence of recordation, if any, by the conveyee(s). The graphic left shows these elements and their significance under each type of statute. A detailed discussion of the elements follows.

Other than in a "race jurisdiction", if the subsequent conveyee is to be given priority over the previous conveyee he or she must have taken title without notice of the prior conveyed rights. One of the legislative provisions in each jurisdiction is that everyone is charged with constructive notice of all recorded documents. Since the law assumes that the recorded rights of the prior conveyee were `known' by the subsequent conveyee they could not be inadvertently harmed, therefore the common law priority of "First in Time, First in Right" should be maintained. The argument also applies when the subsequent conveyee has actual notice of the prior conveyee's rights--even if that deed is unrecorded. Moreover, if the facts of the situation would have caused a reasonable person to ask questions that ultimately would have lead to the subsequent conveyee knowing about the prior rights, they will be charged with inquiry notice--even if they did not ask those questions. The recording acts merely require that title be taken without notice, constructive, actual or inquiry; but notice is not an issue in a race jurisdiction.

Also other than in a "race jurisdiction" if the subsequent conveyee is to be given priority over the previous conveyee he or she must have been a bona fide purchaser. The common law has a long history of protecting innocent purchasers from fraud and unreasonable loss. The recording act requirement that to be given priority the subsequent conveyee be a bona fide purchaser (B.F.P.) is an aspect of that protection. If the subsequent conveyance is a gift or a sham it is not entitled to the protection of the act. For a subsequent conveyee to be seen as a B.F.P. they must have paid a "reasonable price", but that does not mean that they must have paid "fair market value". A purchaser of realty at a tax execution or distress sale, for example, may be a B.F.P. even though they acquired `a bargain'. On the other hand payment of a "token" price does not qualify a subsequent conveyee as a B.F.P. In a race jurisdiction being a B.F.P. is not an issue.

Other than in a "notice jurisdiction", if the subsequent conveyee is to be given priority over the previous conveyee he or she must have recorded first. In a notice jurisdiction the subsequent conveyee is given priority whether or not they record; but, failure to do so leaves them at risk to a third conveyee.

Application of these statutes can involve conveyance of all of grantor's estate or just a portion of it. They also apply to conveyances of easements and other rights as well as financial documents (mortgages, trust deeds, liens, etc.). Most commonly grantors have inadvertently described identical portions to grantees at different times. And, this condition usually arises when "legal descriptions" were prepared by someone other than a professional surveyor. The scrivener believed that a quantity (distance, direction or area) used in grantor's acquisition deed was empirically correct. If it was not, this mistaken belief would not affect the first conveyed portion of grantor's estate; but it would make a difference with regard to subsequent conveyances. Relying on this mistaken belief the scrivener "calculated" data to be used in the subsequent descriptions, thereby creating gaps and/ or overlaps. While the Recording Acts have no application with regard to gaps, they will control the boundary resolution regarding an overlap.

In Diagram 1 Grantor is shown acquiring his farmstead on February 10, 1900. His deed utilized a metes description which also stated that it contained "40 acres". Calculations show that Grantor's property actually contained 39.95+ acres. In Diagrams 2, 3 & 4 (left) grantor is shown selling the "West 20 acres" to Party A on May 17, 1926; and, the "East 20 acres" to Party B on June 26, 1942. Party B's description overlaps Party A's description by 1.50+ feet. Under American common law Party A would own 20.00 acres and Party B would own the remaining 19.95+ acres; grantor could not sell what he did not own, and Party A (who is first in time) would be senior (first in right).

However, neither party recorded their deed in a timely manner. Party B waited 2 years to record his/her deed; Party A waited between 15 and 19 years (Diagrams 2, 3 & 4). These delays cause the recording statute to become a factor in deciding the "senior rights" between A and B. Depending upon the circumstances, and the type of recording act adopted, Party B may own 20 acres while Party A may own only 19.95+ acres!

Disregarding the more than 15 year gap between Party A's acquisition and recordation (Diagram 2), he/she is the owner of 20 acres under all types of recording acts. Since Party B's acquisition occurred after Party A recorded his/ her deed there is no issue of "Notice" or "Race". Party A was at risk of losing his/ her senior status for more than 15 years, but because the deed was recorded on July 10, 1941 (prior to B's conveyance), A's risk ended and he/she is the true owner of 20 acres.

In Diagram 3 the situation is different. Here, Party A delayed more than 17 years, recording his/her deed on July 10, 1943. When Party B acquired title on June 26, 1942 A's deed had not yet been recorded. Under a "Notice Statute" Party B would be the owner of 20 acres and Party A would own 19.95+ acres. However, Party B also failed to record in a timely manner (2 years after his/her conveyance and almost 1 year after A's recordation). Therefore, under either a "Race Statute" or a "Race-Notice Statute" Party A would own 20 acres and Party B would own 19.95 acres (because Party A recorded first).

The scenario in Diagram 4 is changed. Party A waited over 19 years to record. Under a "Notice Statute" Party B would own 20 acres because he/she acquired title without Notice of A's rights. Under a "Race Statute" he/she would own 20 acres by virtue of recording first (June 26, 1944 vs. July 10, 1945). And since both conditions apply, B would own 20 acres under a "Race-Notice Statute" as well (assuming "B" is a B.F.P.).

Each of the race, notice and race-notice statutes utilizes the fundamental elements in the general manner described. If the practicing surveyor only needed to be aware of the nine options described, this "in depth discussion" would be over. But that is not the case; in Part Three we will examine situations where the "statutory ideal" and the "reality" do not match, as well as the legislative and judicial responses to the `mis-match'.

Academically trained as an Earth Scientist, Chuck attended the University of San Fernando Valley, College of Law. He is a licensed surveyor in Oregon and California, and an Adjunct Senior Lecturer at the University of Wyoming. His private practice is focused on forensic service to members of the bar involving real property rights and litigation.

A 130Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 
< Prev   Next >

 American Surveyor Recent Articles
Editorial 
Editorial: The Fire Alarm
Based on the reaction to our exposé of an attempt to remove boundary experience from the requirements to sit for a licensing exam, we seem to have struck a nerve. An educator from New Mexico chastised me for allowing the magazine to be "divisive, vilify the efforts of other ....
Read the Article
Wendy Lathrop
Vantage Point: Introducing TMAC-2
One of the closing suggestions of the first Technical Mapping Advisory Council to FEMA (TMAC-1), which convened from 1996 through 2000, was for an ongoing advisory group of technical users, something more permanent than its own five-year statutory span. The recommendations of TMAC-1 ....
Read the Article
Michael J. Pallamary, PS 
The Curt Brown Chronicles: The Future for the Land Surveyor
Curt Brown spent a considerable amount of time and energy in advancing the interests of the profession and, as he astutely noted, notwithstanding the evolution of measuring equipment, the fundamentals components of the profession merit consideration and attention. Then, as now, the future ....
Read the Article
Jason E.
Foose, PS 
The HP 35s Calculator—A Field Surveyor's Companion—Part 5- Inverse to a Line or Perpendicular Offset
This program is comparable to "inverse to line" and "station/offset" routines. The user enters a base point and defines a direction by point or azimuth, then selects a third point for reference. I use this routine frequently ....
Read the Article
Natalie Binder 
Moving London Safely Forward
Paddington Station, ­famous worldwide not only for its creator Isambard Kingdom Brunel, but also for a small marmalade loving bear. Built in 1854, Paddington Station is a fine example of an English Heritage grade 1 listed building and is site to the ....
Read the Article
Smith,
Roman, Youngman 
Recent Activities at the National Geodetic Survey—Part 2 of 4
The Gravity for the Redefinition of the American Vertical Datum (or GRAV-D) project got off the ground, literally, in 2007 when NGS's first airborne gravity flights took place. Today the GRAV-D airplanes continue to fly! With a second airborne gravimeter acquired in December 2011, NGS has been ....
Read the Article
Jerry Penry,
PS 
The Pole of Inaccessibility
The most challenging location to reach due to its remoteness from geographical features is known as a pole of inaccessibility. Generally, this calculated position is furthest from any coastline and would be the location where you would least like to be ....
Read the Article
Larry Trojak 
Use of Total Station Spawns Improvements in Salmon Monitoring Program
Think surveying equipment and it's not likely that an organization working to ensure the survival of the Pacific Northwest's salmon population comes to mind. Yet that is precisely what's ....
Read the Article
Albert “skip” Theberge 
Artillery Surveyors in WWII—Africa & Europe: Part 3: Survey Officers
Lieutenant Colonel Earle Deily, on loan from the USC&GS, was Survey Officer for the V Corps and the 17th Field Artillery Observation Battalion providing survey control to the battalion, training survey teams, and advising the V Corps Artillery Commander. He helped plan for the D-Day invasion and ....
Read the Article
Feedback 
FeedBack
I read with great interest your editorial and comments concerning Chad and Linda Erickson's article on an Idaho initiative to redefine the definition of surveying in Idaho state statutes. I am not familiar with the specifics of what is being proposed and will leave it to others to decide the ....
Read the Article
Bill Chupka,
PS 
100 Years Too Late?
There have been times in my life when I had more than just a foot in the past. Ever feel like you are one of those people who was born a hundred years too late? I remember feeling that way at times when I was young, but I was able to put all those thoughts to rest this summer over the span ....
Read the Article

deliciousrssnewsletterlinkedinfacebooktwitter

Amerisurv Exclusive Online-only Article ticker
Featured Amerisurv Events
List Your Event Here
please
contact Amerisurv


Google
 
AMERISURV TOP NEWS

Spectra Releases
New Digital Level

GOT NEWS? Send To
press [at] amerisurv.com
Online Internet Content

Sponsor


News Feeds

 
Subscribe to Amerisurv news & updates via RSS or get our Feedburn
xml feed

Need Help? See this RSS Tutorial

Historic Maps
Careers

post a job
Reach our audience of Professional land surveyors and Geo-Technology professionals with your GeoJobs career ad. Feel free to contact us if you need additional information.

 

Social Bookmarks

Amerisurv on Facebook 

Amerisurv LinkedIn Group 

Amerisurv Flickr Photos 

Amerisurv videos on YouTube 

twitter

 




The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
905 W 7th St #331
Frederick MD 21701
301-620-0784
301-695-1538 - fax