Record Title: Part 1­-Foundations

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This is the first 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 will look 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.

Surveyors, title insurers and public agencies (including the courts) rely primarily on recorded instruments in determining real property rights and responsibilities. Our modern system of recorded deeds has evolved from its early English history of oral transfers into today’s process. In some ways that process is similar to a GIS with "layers" placed over underlying foundational information. But upper (current) layers which often obscure foundational (older) concepts have not replaced or eliminated them. The original basis of real property ownership continues today, overlaid by our modern system.

Today’s Record Title, which forms the basis of most our professional boundary opinions, is the result primarily of two key pieces of legislation: the Statute of Frauds and the Recording Act. Each state legislature has adopted (usually with only minor variation) the 1677 general parliamentary change from oral to written contracts regarding the transfer of real property rights. Subsequently, they also adopted legislation which strongly encourages recordation of those contracts. Although neither enactment is absolute, over time these two laws have combined to form the basis of our modern documentary preservation and retrieval system.

During the Middle Ages large portions of England and Western Europe were held in allodium; ownership was by an individual in their own right without obligation to an overlord (owing neither service, product or fealty). Following the Battle of Hastings in1066, William the Conqueror, Duke of Normandy, created an "English feudal system". Conceptually, as King, William owned all of the land. To those who had assisted him in defeating King Harold, William parceled out rights to the use of various portions of the country. Over time these possessory interests became what the common law thinks of today as ownership. Technically however the Crown is still the owner, mediate or immediate, of each and every parcel. In America the sovereign states are the allodial owners and take title to land when a previous owner dies without heirs (escheat).

In a society where virtually everyone was illiterate (e.g., they could neither read nor write) the transfer of real property was accomplished orally via livery of seisin. The buyer and seller would meet on the land, in the presence of the adjoiners. The seller would verbally describe the property being sold and point out the corners to the buyer. The adjoiners either corrected any boundary misstatement or "forever held their peace". The seller placed a rock, a tree branch, or some other symbol of the land in the buyer’s hand and the transfer was complete–possession equaled ownership.

As society became more populous and more prosperous it also became more literate, particularly amongst landowners (wealth and education have been linked for a long time). With increased population, the supply of undeveloped land decreased and land values increased–as did ownership disputes. Then as now, evidence was the key–but evidence of an oral contract is often hard to establish; by the seventeenth century many landowners were choosing to use written contracts.

There were significant societal changes occurring at this time. The Statute of Frauds, one of many parliamentary acts, dealt with a host of contractual issues in addition to the transfer of land ownership (a deed is actually a specialized form of contract). The legislature was primarily concerned with the evidence of contractual agreements and the difficulty of adjudicating disputes arising from oral contracts. In terms of real property, the Statute of Frauds only addressed interests "made or created by Livery-of-Seisin"; it did not affect property rights which were the product of inheritance or the operation of law.

Perhaps as an unintended consequence or perhaps merely as another of the many changes, the creation of written deeds coincided with trends toward "fragmentation of title" and, unfortunately, ambiguity of description. The common law came to recognize possessory and non-possessory rights; legal and equitable interests; present, future and concurrent titles. The `bundle of rights’ comprising ownership grew exponentially. And the written description of parcels often differed from the description of previous and/or adjoining ownerships. Despite these problems the Statute of Frauds has provided the framework for a more definite and stable land tenure system.

Colonial America did not strictly follow English law despite our recognition of habeas corpus and trial by a jury of one’s peers. Each colony passed its own statutes with its governor or legislature often initially acting as "the court". Adaptation of English law favoring practical experience and/or experimentation was common; juries exhibited `homespun justice’ and `common sense’; the rules of real property inheritance were changed; and Church courts did not exist. Despite these differences, and the anti-British sentiment following the War of Independence, Blackstone’s Commentaries and the common law continued to provide the general basis of our American judicial system.

Real Property law in this country is essentially a `state matter’; federal law on the subject is quite limited. As a result, the NCEES exam covers boundary law generically, leaving the `local intricacies’ to individual state exams. Each state’s legislature has adopted a Statute of Frauds, albeit using modern language and in many instances some slight variation–but the basic principle of a written deed is contained in each enactment.

The use of written rather than oral transfers of real property rights, titles, and interests has no doubt prevented many disputes between grantors and grantees; but the Statute of Frauds does not pertain to third parties. If a grantor, knowingly or unintentionally, grants the same (portion of a) parcel or right to different grantees the Statute of Frauds is of no help in resolving the conflict. The common law developed the maxim: First in time, first in right. Today’s surveyors and title examiners often refer to the concept as senior rights. The first (or senior) grantee is held to have acquired "the full measure" of their deed, while the second (or junior) grantee acquired "the remainder" of grantors original parcel–albeit less than their deed described.

The purpose of our judicial system is to resolve disputes: quickly, fairly and permanently. To this end the law has adopted fundamental concepts, such as "First in time, first in right". The rationalization of this concept is, that having once conveyed the (portion of) the parcel grantor no longer owned it and therefore could not have conveyed it to the second grantee. Inevitably there were innocent `junior grantees’ who failed to acquire what they paid for because of unknown or unrevealed `senior conveyances’.

The Statute of Frauds only required inter vivos transfers (between t
he living) to be in writing, it said nothing about inheritances, the operation of law or protecting "third parties". The legislature addressed the major part of the problem by enacting a Recording Act. The new legislation served two functions: it established priorities between the grantees of the same parcel from a common source; and it provided for a public land record document preservation and retrieval system.

None of the recording acts require recordation, they only create a strong incentive to record a deed in a timely manner. The incentive is the potential loss of seniority ("first in time") if they do not record their deed. The recording acts also declare that everyone "knows" the entire content of the thereby created public land record system; we are all charged with constructive notice of recorded documents. In the eyes of the law we all are aware of prior recorded deeds; therefore, except with regard to unrecorded deeds, we take title "knowing about the senior right" and can not be innocent victims.

Under all of the recording acts the first conveyee must record or run the risk of loosing what they have acquired. And, all conveyees must search the record or run the risk of not acquiring what they are paying for. This inherent duality presented the various state legislatures with the problem of deciding which condition would, ultimately, abrogate the common law priority. Some jurisdictions adopted a "race statute" under which the conveyee who recorded their deed first was declared to have priority; others adopted a "notice statute" which declared that a subsequent conveyee would have priority since the previous conveyee created the problem.

Some legislatures felt that both ideas were "incomplete"; they adopted a "racenotice statute" which combined elements of the other two. Under this scenario a subsequent conveyee who takes title without notice of a prior right and who first records their deed is given priority. Today, there are very few "race" states and only a handful of "notice" jurisdictions; the majority of state legislatures have adopted "race-notice" statutes.

Modern real estate transactions depend heavily upon title assurances. Statutorily deed forms (other than quitclaims) contain explicit and/or implied assurances of grantor’s capacity to convey the rights, titles and/or interests described therein. Whether expressed or implied as warranties, covenants or other means, these assurances are rarely sufficient to satisfy many purchasers and their lenders. Most transactions today involve either a Lawyer’s Title Opinion or Title Insurance. In virtually all situations, even in jurisdictions utilizing a title registration system, the documents of record form the basis of the title assurances relied upon. Part two of this series will be a detailed examination the land record system and its application.

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 134Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE