Filing date or execution date for senior rights determination
I’ve got a rare situation where the execution date of Deed A is prior to Deed B. However, the recording date for B is prior to A. Does anyone know of any precedence for this?
- 42 Replies
The execution date is the key issue, the filing date really doesn’t matter.
It depends on the state (jurisdiction).
There are race states, notice states, and race-notice states.
Here is a quick overview:
Race Jurisdiction: A recording act that gives priority of title to the party that records a claim first, even if the party had notice of an earlier unrecorded claim on the same property.
Notice Jurisdiction: A recording act that gives priority of title to the party with the most recently obtained claim, but only if the party also lacked notice of an earlier claim. An earlier recorded claim gives the whole world constructive notice.
Race-Notice Jurisdiction: A recording act that gives priority of title to the party that records first, but only if the party also lacked notice of prior unrecorded claims on the same property.
If you are in Nevada, check the following Nevada Revised Statutes (NRS):
111.105 – 111.235
In particular, NRS 111.180:
https://www.leg.state.nv.us/nrs/nrs-111.html#NRS111Sec180
They are under:
TITLE 10 – PROPERTY RIGHTS AND TRANSACTIONS
CHAPTER 111 – ESTATES IN PROPERTY; CONVEYANCING AND RECORDING
If I remember correctly, there are only a couple of states with straight race statutes, and the rest are about evenly split between notice and race/notice.
What state is this in?
“…people will come to love their oppression, to adore the technologies that undo their capacities to think.” -Neil PostmanA properly executed and dated deed is a valid legal contract, even if not filed but witnessed. The deed executed with the earliest date will always control senior rights. Filing a document simply puts the public on notice of any given transaction but has no legal bearing on whether the chicken or the egg came first. The executed deed grants the right of ownership, not the filing.
This is in Nevada. As near as I can tell, only 3 states have the Race-to-Record statute. We’re not one of them.
A properly executed and dated deed is a valid legal contract, even if not filed but witnessed. The deed executed with the earliest date will always control senior rights.
Not for about half the states in the USA.
For example, Washington State is a race-notice state. RCW 65.08.070:
“A conveyance of real property, when acknowledged by the person executing the same (the acknowledgment being certified as required by law), may be recorded in the office of the recording officer of the county where the property is situated. Every such conveyance not so recorded is void as against any subsequent purchaser or mortgagee in good faith and for a valuable consideration from the same vendor, his or her heirs or devisees, of the same real property or any portion thereof whose conveyance is first duly recorded.”
“…people will come to love their oppression, to adore the technologies that undo their capacities to think.” -Neil PostmanA deed is not a contract.
A deed is an instrument for the convenaynce of an interest in real property.
I suggest you review what I posted, read some state laws, consult an attorney, or attend law school to fill in the rest of the story.
You have missed the forest for the trees.
@michigan-left I disagree a deed is a contract in that it conveys full rights of ownership and enjoyment of the PIQ to the grantee and extinguishes all of the rights of the grantor. There is always an agreed to monetary consideration, contractually agreed to upon full execution. Recordation of an instrument, which a contract is, based on who files first has no bearing on Junior and Senior rights.
A deed, is, infact a contract in that both executing parties agree to the terms.
@michigan-left I disagree a deed is a contract in that it conveys full rights of ownership and enjoyment of the PIQ to the grantee and extinguishes all of the rights of the grantor. There is always an agreed to monetary consideration, contractually agreed to upon full execution. Recordation of an instrument, which a contract is, based on who files first has no bearing on Junior and Senior rights.
A deed, is, infact a contract in that both executing parties agree to the terms.
It just so happens that New Jersey is a race state. It took about 10 seconds to look it up.
I think two different things are being discussed here. The OP asked about senior rights, which implies that there are at least two parcels, successively granted. But aren’t the different kinds of recording acts (race, notice, race-notice) for sorting out what happens when a grantor grants a particular parcel to more than one grantee? The former situation is about resolving a boundary conflict. The latter situation is about determining who is recognized by the state as the true grantee.
I’d be curious to know of any court decisions in which the court cited the state’s recording act for resolving a question of senior rights.
I think two different things are being discussed here…
Exactly what I was thinking. Thanks for saying it.
A grants land to B, B does not record the Deed. Then A grants land to C, C records the Deed.
If C knows about the Deed to B then B is Senior.
If C does not know about the Deed to B then C is Senior.
If C arrives on the land and B is standing inside a fenced enclosure, for example, then C is at least under inquiry notice to ask B what’s up.
Recording a Deed in the chain of title discoverable in the indexes imparts constructive notice. So-called wild deeds do not.
Notice is critical if the same description is sold twice. That’s a title principle.
But what is not clear in this discussion is whether the same rules apply when the east 300 feet is sold and the west 300 feet is sold by dated deeds out of a parcel that long after buyers take possession is measured to be 570 feet wide.
Are some applying a title rule to a boundary situation?
.Notice is critical if the same description is sold twice. That’s a title principle.
But what is not clear in this discussion is whether the same rules apply when the east 300 feet is sold and the west 300 feet is sold by dated deeds out of a parcel that long after buyers take possession is measured to be 570 feet wide.
Are some applying a title rule to a boundary situation?
In this sort of case, determination of the line rests upon when the first conveyance was made i.e., title transferred. If we lay out the boundary by deed, there will be an overlap (or gap, in some cases), so that clearly will not suffice to resolve the location and we must look to the conveyance timeline.
Here’s an excerpt from an article by Attorney/Surveyor David Pehr (this is with respect to Colorado, a race-notice state) (emphasis mine):
“Where two grantees acquire properties by separate deeds made either by the same grantor or by
different grantors and the deeds conflict…To the extent that the descriptions actually conflict, seniority may be determined by the relative recording dates of the deeds. Note that it is the recording dates that matter, not the dates of the conveyances. This may seem strange at first glance, particularly in those instances where the grantees have a common grantor…Clearly, the grantor bears the greatest fault and, assuming he’s available and solvent, he must make the second grantee whole. But what if he’s dead, gone or insolvent? The law says the next most delinquent actor in the transaction is the first grantee if he failed to record. After all, if he had recorded in a timely manner, Grantee Two would have been able to discover the first conveyance and, presumably, the conflict with his proposed purchase and avoid the problem. The theory is that Grantee One should therefore suffer the loss because he allowed the conflict to occur by failing to timely record. Note, however, that this is only true if Grantee Two had neither actual or constructive notice of the first conveyance…
If Grantee One does record prior to the second conveyance, Grantee Two is at fault for failing to look for and find the first conveyance and he must therefore suffer the loss. Therefore, in Colorado, relative seniority is determined by recordation date, not by conveyance date.”
“…people will come to love their oppression, to adore the technologies that undo their capacities to think.” -Neil PostmanI disagree a deed is a contract in that it conveys full rights of ownership and enjoyment of the PIQ to the grantee and extinguishes all of the rights of the grantor.
So… What about: easements, air rights, or mineral rights; to name a few?
There is always an agreed to monetary consideration,
I’m guessing you’ve never heard of a Life Estate, or intestate succession?
A deed, is, infact a contract in that both executing parties agree to the terms.
Asking for a friend… Which party(ies) sign the deed?
IMHO, the question should be posted on an Attorney forum…
Recording statutes do not affect retracement surveying. If you can find the line as laid out at the time, then that’s the line. Unless someone didn’t have the right to sell it. But that’s different than splitting a parcel. Senior/Junior rights are like PLSS double/single proportion; should not happen in retracement these days (for the most part).
@jim-in-az The question of title when one grantor sells the same parcel twice should,, but we have established that is not the question asked. The question is where is the boundary between two separate parcels. That is what we do.
@duane-frymire I assume the question was asked because the line has never been established on the ground or is lost.
Why do you think juinior/senior rights and PLSS proportioning shouldn’t be happening? What are you suggesting we do when we encounter lost corners or a metes and bounds description that has never been established.
@aliquot Usually the answer is look closer. Most likely it is not lost, and most likely it has been surveyed. In fact, that’s the legal presumption. Rebuttable only with clear and convincing evidence, or possibly beyond a reasonable doubt in the case of lost corner plss.
If it truly is a recording statutes question, the most troublesome part is if you are in an inquiry notice jurisdiction or not. And if so, the argument will probably be around whether an inquiry was triggered. But a surveyor involved with the boundary is not generally going to have enough information to answer those sort of questions. Unless of course the surveyor is retained specifically to investigate something like that. More likely the attorneys would hire a private investigator.
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