Recording Acts Made Simple: Race, Notice, and Race-Notice on the Bar Exam

Recording act questions follow a pattern: an owner conveys the same property twice, and the question asks who wins. The answer depends on the type of recording statute and what the later buyer knew. Here's how to work through them.

The default: first in time

At common law, the first grantee wins. Recording acts change that default to protect later buyers who didn't know about an earlier conveyance.

The three types of statutes

Race. The first to record wins, regardless of notice. Only a few states use a pure race statute.

Notice. A subsequent bona fide purchaser (BFP) who takes without notice of the earlier conveyance wins, even if they never record. The typical language: "unless recorded, a conveyance is not valid against a subsequent purchaser for value without notice."

Race-notice. A subsequent BFP wins only if they took without notice and recorded before the earlier grantee. Typical language: "unless recorded, a conveyance is not valid against a subsequent purchaser for value without notice who first records."

Exam tip: identify the statute from its wording. If it mentions notice and recording first, it's race-notice. If it mentions only notice, it's notice. If it mentions only recording order, it's race.

Who counts as a bona fide purchaser?

A BFP must:

1. Pay value. A gift recipient, heir, or devisee isn't a purchaser. Nominal consideration usually doesn't count.
2. Take without notice of the earlier conveyance at the time of purchase.

The three kinds of notice

Actual notice: the buyer actually knew about the earlier conveyance.

Constructive (record) notice: the earlier conveyance was properly recorded in the chain of title, so a reasonable search would have found it. A "wild deed," one recorded but not connected to the chain of title, doesn't give constructive notice.

Inquiry notice: facts that would lead a reasonable buyer to investigate, like someone other than the seller living on the property. The buyer is charged with what a reasonable inquiry would have revealed.

The shelter rule

A person who takes from a BFP is protected as though they were a BFP, even if they had notice or didn't pay value. This keeps the BFP's title marketable. The main exception: a grantor who was part of the original wrongdoing can't reacquire the property and use the rule to clean their title.

Working a question

1. Identify the type of statute.
2. Put the conveyances in time order.
3. For the later grantee, ask: did they pay value? Did they have notice (actual, record, or inquiry)? Did they record first (if race-notice)?
4. Check whether anyone takes through a BFP (shelter rule).
5. Conclude.

Where Lexora Prep fits

Recording acts are rule-dense and easy to confuse under pressure, especially the difference between notice and race-notice. Lexora Prep is a Black Letter Law rule-training platform where you practice Real Property rules like these from memory, with fill-in-the-blank and element identification modes that catch small errors. It tracks missed elements and brings weak rules back for review.

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About Lexora Prep

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