Before recording acts were instituted, the common law rule for recording deeds was “first in time, first in right.” This means that if a subsequent purchaser did not have notice of a prior conveyance and records his interest, he will prevail over any prior unrecorded interest.
However, most states have recording acts which create rules for situations such as these. It is important to recognize that recording acts do not require that a deed be recorded for a conveyance to be legally valid. The deed is valid against the grantor upon delivery with or without recording.
There are three type recording acts:
- Race statutes – The person who records first prevails
- Notice statutes – A subsequent purchaser prevails over an earlier purchaser only if the subsequent purchaser did not have notice of the earlier conveyance. Further, the notice statute protects any purchaser without notice against unrecorded interests even if the purchaser does not record first.
- Race-Notice statutes – A subsequent purchaser prevails over prior unrecorded interests only if she:
- Had no notice of the prior conveyance at the time she acquired her interest and
- Records before the prior instrument is recorded
Race-notice is the majority rule which is in effect in 25 states and the District of Columbia.