Titles: On the Record - Real Property Foundations Episode

What are the two basic steps in conveyancing?

Contract and closing.

What generally transfers legal title at closing?

Delivery and acceptance of a valid deed.

What is recording?

Placing an instrument concerning property rights in publicly accessible land records.

What is the purpose of recording?

To give notice of property rights and help resolve competing claims.

What types of instruments may be recorded?

Deeds, mortgages, and certain contracts relating to land.

Does recording generally create a valid conveyance between the parties?

No. An otherwise valid deed generally transfers title without recording.

What is the common law rule for competing conveyances?

First in time, first in right.

A conveys land to B and later conveys the same land to C. Who wins under common law?

B, because B received the first conveyance.

What do recording acts modify?

The common law rule of first in time, first in right.

What are the three types of recording acts?

Race, notice, and race-notice.

Who wins under a pure race statute?

The purchaser who records first.

Does notice of an earlier conveyance generally matter under a pure race statute?

No. Priority generally depends on who records first.

A conveys to B, then to C. C records before B. Who wins under a race statute?

C.

A conveys to B, then to C. C knows about B’s deed but records first. Who generally wins under a pure race statute?

C, because notice generally does not matter under a pure race statute.

Who is protected under a notice statute?

A subsequent purchaser for value who takes without notice of the prior interest.

When is notice assessed under a notice statute?

At the time of the subsequent purchase.

Must a subsequent bona fide purchaser record to defeat an earlier unrecorded interest under a notice statute?

No.

A conveys to B, who does not record. C later purchases for value without notice. Who wins under a notice statute?

C.

C purchases for value without notice of B’s unrecorded deed. B then records before C. Who wins under a notice statute?

C, because C qualified for protection when purchasing.

Why should a purchaser record even after gaining priority under a notice statute?

To protect against later purchasers.

What must a subsequent purchaser do to win under a race-notice statute?

Purchase for value without notice of the prior interest and record before the earlier grantee.

A conveys to B, who does not record. C purchases for value without notice and records first. Who wins under a race-notice statute?

C.

C purchases for value without notice of B’s deed, but B records first. Who wins under a race-notice statute?

B, because C failed to record first.

C knows about B’s prior deed but records first. Does C receive protection under a race-notice statute?

No. C must both lack notice when purchasing and record first.

What is the memory rule for a race statute?

Record first.

What is the memory rule for a notice statute?

Purchase for value without notice.

What is the memory rule for a race-notice statute?

Purchase for value without notice and record first.

What does BFP stand for?

Bona fide purchaser.

What are the two requirements for BFP status?

Purchase for valuable consideration and take without notice of the prior competing interest.

Is a person who receives land as a gift a purchaser for value?

No.

Is a person who inherits land a purchaser for value?

No.

Does paying valuable consideration alone establish BFP status?

No. The purchaser must also lack notice of the prior competing interest.

Which recording acts require the subsequent purchaser to lack notice?

Notice and race-notice statutes.

What is adverse possession?

Acquiring title by possessing another person’s land in the required manner for the statutory period.

Does adverse possession require the owner to deliver a deed to the possessor?

No.

What determines the required period for adverse possession?

The applicable jurisdiction’s statute.

Is the adverse possession period always 20 years?

No. The statutory period varies by jurisdiction.

What are the elements of adverse possession described in the lecture?

Continuous, open and notorious, actual and exclusive, and hostile possession for the statutory period.

What does continuous possession mean?

Regular use throughout the statutory period consistent with how an ordinary owner would use that type of land.

Does continuous possession require constant daily use?

No.

Can seasonal use satisfy continuous possession?

Yes, if it is consistent with the ordinary use of that type of property.

A neighbor grazes animals for several years, abandons the land for several years, and later returns. Is possession continuous across that entire period?

No. The abandonment interrupts continuity.

What does open and notorious possession mean?

Possession sufficiently visible to alert a reasonably attentive owner that someone is occupying the land.

Must the true owner actually know of the possession for it to be open and notorious?

No. The possession must be sufficiently visible to put the owner on notice.

Can hidden or concealed use satisfy open and notorious possession?

No.

Why may visibly grazing alpacas satisfy open and notorious possession?

The animals visibly indicate that someone is using the owner’s land.

What does actual possession require?

Physically occupying or using the land.

What does exclusive possession require?

Possessing the land without sharing possession with the true owner or the public.

How much land does an adverse possessor generally acquire?

Only the land actually possessed.

Does occupying a small part of a tract ordinarily establish title to the whole tract?

No.

Why might the owner’s regular use of the claimed land defeat adverse possession?

It may prevent the possessor’s occupation from being exclusive.

What does hostile possession mean?

Possession without the true owner’s permission.

Does hostile possession require anger or aggression?

No.

Under the objective approach described in the lecture, does the possessor’s state of mind matter?

No. The key question is whether possession is without permission.

Can a mistaken belief that the land belongs to the possessor satisfy hostility under the lecture’s approach?

Yes, if possession is without the true owner’s permission.

Can knowingly occupying someone else’s land satisfy hostility under the lecture’s approach?

Yes, if possession is without permission.

Can possession with the owner’s permission establish adverse possession while that permission continues?

No. Permissive possession is not hostile.

David allows his neighbor to graze alpacas on his land. Which adverse possession element is missing?

Hostility, because the neighbor has permission.

A neighbor openly and exclusively grazes alpacas without permission for the entire statutory period. What else must be established?

That the possession was actual and continuous throughout that period.

Must all adverse possession elements be satisfied for the statutory period?

Yes.

What does the mnemonic COAH stand for?

Continuous; Open and notorious; Actual and exclusive; Hostile.

What time requirement must be added to COAH?

All elements must continue for the entire statutory period.