Recording, notice, and title evidence
A deed is valid between the grantor and grantee as soon as it is delivered and accepted. Recording does something different: it protects the grantee against everyone else.
Florida's recording statute
Fla. Stat. 695.01(1) says that a conveyance, transfer, or mortgage of real property or any interest in it, and any lease for a term of 1 year or longer, is not "good and effectual" against creditors or subsequent purchasers for a valuable consideration and without notice unless it is recorded according to law. Recording happens in the official records of the county where the land lies.
In practice this means:
- A buyer who does not record takes a risk. If the seller sells again to someone who pays value, has no notice of the first sale, and records, the second buyer can win.
- A later buyer who knew about the earlier, unrecorded deed is not protected. The statute protects only purchasers without notice.
- An instrument signed under a power of attorney is not good against those creditors and purchasers unless the power of attorney is also recorded before their rights arise (695.01(1)).
Under 695.01(2), grantees by quitclaim deed are treated as bona fide purchasers without notice within the meaning of the recording acts. So a quitclaim grantee who pays value can get the same recording-act protection as any other buyer.
Constructive vs actual notice
| Constructive notice | Actual notice | |
|---|---|---|
| Meaning | The law treats you as knowing, whether or not you looked | You really know |
| How it arises | Recording in the public records; also what an inspection of the property would reveal, such as someone else living there | Being told, reading the document, seeing it yourself |
| Effect | You cannot claim to be a purchaser "without notice" | Same |
Recording gives constructive notice to the world. A buyer cannot say "I never searched the records" to defeat a recorded deed or mortgage. That is why a title search is part of almost every sale.
Evidence of title
A buyer needs proof that the seller can convey good title. The main forms are:
- Abstract of title. A condensed history of the recorded documents affecting the property: deeds, mortgages, liens, judgments, and releases. It reports what the records show but does not give a legal opinion on them.
- Attorney's opinion of title. An attorney examines the abstract or the records and gives an opinion on whether title is marketable and what defects or encumbrances exist. An opinion is not a guarantee; if the attorney missed something without being negligent, the buyer bears the loss.
- Title insurance. A title company searches the records and then insures against covered defects, including some no search could find, such as a forged deed in the chain of title. The premium is paid once, at closing.
Owner's vs lender's policy
| Owner's policy | Lender's (mortgagee's) policy | |
|---|---|---|
| Protects | The buyer/owner | The lender |
| Amount | Usually the purchase price | Usually the loan amount; coverage tracks the loan balance |
| Typical requirement | Optional for the buyer, though strongly advised | Usually required by the lender as a condition of the loan |
A lender's policy does not protect the owner's equity. A buyer who wants protection for their own investment needs an owner's policy.
Exam tip: recording protects against later buyers and creditors; title insurance pays for covered losses. They do different jobs.