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Why should I have my deed recorded?

QUESTION:

My wife and I got a divorce last year, and she gave me a deed to a rental house we owned together. I have kept the deed in my safe deposit box and never recorded it because I didn’t know I was supposed to. Now I am trying to sell the property, and I am told that my ex-wife gave a deed to another person who has recorded their deed. I am also being told that this other person’s deed is now superior to mine. How can this be? I got my deed first.

ANSWER:

At common law, if an owner conveyed the same real estate twice, the first buyer generally prevailed. However, recording statutes change that outcome under certain circumstances.

Generally, recording statutes provide a mechanism for earlier purchasers to give notice of their newly acquired interest by recording their deed in the county’s public records. These statutes seek to protect "good faith" purchasers from secret interests that may have been previously created. If someone receives a deed to real estate, it must be recorded in the county’s public records in order to be effective against subsequent creditors or subsequent purchasers who paid value for their deed and who did not know about a prior deed given to someone else. The statute does not make it a requirement that the later deed be recorded in order to take priority over the earlier one. The person taking the later deed will prevail over the person holding a prior deed which did not get recorded before the second deed was given. The key is that the subsequent purchaser had no knowledge or other notice of the prior deed. It makes no difference that the second deed may not have been recorded yet.

Recording is not essential to make a deed valid as between the parties to the deed. So the deed from your ex-wife to you is most likely a valid deed as between you and her. However, as between you and the other person she gave a deed to, the recording statute will protect the other person since you did not record your deed. This protection of course presumes they paid value and had no notice that she had already given you a deed of her interest.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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