Recording Title with the County
RECORDING - This means registering a title or lien on property with the County and making the information available to the general public. Recording a title does not guarantee validity of title. Anyone can record anything with the County. It is important to remember a recorded item is not necessarily a valid item.
Ownership of Property
Multiple Requirements - There is no one factor that establishes ownership of real property. This is why an owner buys title insurance. Ownership of property in America is subject to court interpretation.
Deeds/Contracts - A land contract or a deed is not enough to guarantee ownership of property. There have been instances where a con artist sold property to several people and used the identical contract or deed each time.
Possession of Property - The possession of property is not enough in the eyes of the court. Possession by a party could be ruled adverse possession or trespass.
Court Decides - When an ownership question arises, the person who provides the best evidence in a court of law will be judged the owner of the property.
Ownership Rights - The ownership or any other legal right exists whether recorded with the County or not. There are many instances where people obtained a deed to property and never recorded the instrument. Recording helps provide evidence of a recorded item, but it doesn't guarantee the items validity.
Recorded First / First Right - If a person has an equal claim as another owner to a piece of property, the recording aspect comes into play. If they had recorded their legal documents first, their claim will be the better of the two in the eyes of the court. However, this also is not a solid guarantee in today's legal world.
County Recording / Public Record
Public Record - Recording a claim of ownership with the County does make your claim a matter of public record. Any and all persons can obtain the information on file with the County at any time. Some States, such as Washington, require the County auditors to release the ownership information upon request over the phone.
Recording - First In - Recorded documents are "First in time, First in right." The documents have a hierarchy of importance in the eyes of the court. Land records are public records and anyone can review and find the status of recorded claims on a property. These recordings may be valid or they may be invalid. In either case the parties looking up the information are warned of these claims and have no right against a properly recorded claim.
Constructive Notice - A recording gives the entire world "Constructive Notice" of a possible valid claim on a specific piece of property.
Actual Notice - The owner is also protected by "Actual Notice." "Actual Notice" interest is when ownership is not recorded, but the other parties know or believe the interest might exist.
"3" Things Required - When a person buys property the buyer expects to accomplish 3 things. All purchasers are expected to:
Constructive Notice vs. Actual Notice
Joe's Right - Joe only has the legal right to sue Harry for fraud.
Better - Pete has the better right to ownership and possession in this case.
Proper Recording - Joe's recording is proper. He has the ownership and possession right because he took advantage of providing better evidence.
No Ownership - Pete has no right of ownership or possession or action against Joe as he failed to protect his legal right by "notifying the world". He did not record his purchase of the property. He gave no Constructive Notice.
Pete's Right - Pete only has the legal right to sue Harry for fraud.
Unrecorded Sales - The point of these examples is the problems that can ensue with an unrecorded sale. The sale may still be valid between the parties to that sale as long as there is actual notice. An unrecorded sale may not be valid against subsequent purchasers who record first without notice.
The recording of a claim of ownership or a lien is good. It helps establish a claim on property as a means of evidence.
Constructive Notice - Recording gives the world "Constructive Notice" of a possible claim on the property in question. It takes away subsequent buyer's defense of "I didn't know."
Unrecorded Claims - A claim is still valid whether recorded or not. It is simply harder to prove ownership and could lead to loss of ownership if other parties had recorded their claim.
Foreclosure Priority - Another reason that it is wise to record your claims on property, are the priority categories established for claimants at the time of foreclosure on property. The secured liens in Category II are paid in the order of recording with the County.
Category I..................................... Local Governmental claims
Exception: IRS lien priority is a Category III general lien on real and personal property.
Category II..................................... Secured/Specific Liens... by date recorded or statutory advantage
Category III.................................... Judgments and IRS liens are general liens - date recorded
County Clerk - The recording books are maintained by the County Recorder or the County Clerk. Each County has their own separate records. Recorded items are entered in chronological order as they come in.
Effective Recording - A recorded item is effective only in the Counties where it is recorded. All legal action would have to take place where the recording was done. Where the "constructive notice" was given to the public.
Physical Presence - Many States will allow an item to be certified in any other County of that State. The actual recording, though, would be on the County records where the property is located.
The County Clerk
County Clerk - Recording books are maintained by the County Recorder or Clerk. These recorded liens must be recorded in the County where the property is located.
Separate Records in Each County - This is why a lawyer will sometimes record a lawsuit claim in all Counties of a State.
Chronological - Recorded documents are entered in chronological order. When we say chronological order, we are looking at the dates of each recording. The first recorded lien would be listed first regardless of Category I, Category II, or Category III positioning.
Counties Recorded Within - Liens and documents are only effective in Counties where they are recorded. A claim cannot be made on property from another County. The party recording a lien must go to the County where the property is located.
Maintained Records - The County Auditor is the party who maintains the all records on properties including liens. Some States will provide a phone service or an online service to look up the recorded liens and/or ownership of property within the County.
In some States, a perfect stranger can call up the Assessor's/Auditor's Office and gain any information on record right over the phone. You can pretty much always gain the name of the owner. You simply need the legal description. In some Counties, only the address is necessary. Try it!
Recording a document gives:
A) constructive notice
B) actual notice
D) private notice
Harris sold land to Henderson under a land sales contract which was not recorded. Harris then mortgaged the property and that mortgage was recorded. In the event of foreclosure on the mortgage, who has the best legal claim to the property?
C) the mortgage holder
D) all are equal in procedure
Recording of a deed in the county records protects the:
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The study of system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.