Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.
One area that has often caused confusion for my students when studying for the bar exam is the recording statutes in Real Property. This note will summarize the law in that regard as tested on the MBE.
First, there are three types of recording statutes with which you will need to be familiar: (1) race, (2) notice, and (3) race-notice. Let’s begin with race statutes. If the question calls for analysis based on a race statute, then whoever records first wins. A requirement of notice in such circumstances is irrelevant. Half the battle on the MBE is determining which statute is called for in a particular question. A race statute will look like the following: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.”
Next, let’s examine a notice statute. A notice statute, unlike a race statute, brings into the equation a bona fide purchaser (“BFP”). A BFP is a person who pays value and has no notice of any prior instrument. Only a subsequent BFP can prevail under a notice statute, and the BFP will prevail over a prior grantee who failed to record. Be certain that the subsequent purchaser had no actual or constructive notice of any previous conveyance at the time of the subsequent conveyance. if the purchaser had either, then the purchaser is not a BFP, and cannot prevail over a previous purchaser when a notice statute is at issue. A notice statute will look like the following: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded.”
Finally, let’s look at a race-notice statute. Under a race-notice statute, a subsequent purchaser prevails over a previous purchaser, only if the subsequent purchaser takes without notice of any previous conveyance and records before the previous purchaser. This, in effect, combines the two requirements above. In other words, for a subsequent purchaser to prevail in a race-notice statute, that subsequent purchaser must be a BFP, and win the race to record. A race-notice statute will look like the following: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, whose conveyance is first recorded.”
As always, please feel free to leave any questions in the comments section of this post, and I will clarify and expand upon what has been written to address those comments.
Copyright 2010 Sean Silverman and http://www.mbetutorial.blogspot.com. Reprinted by permission.
