Why Are Deeds Recorded?

Every county in the United States maintains a public record of deeds. It is tempting to assume this record is what makes ownership real. Historically, it is something more modest and more interesting.

England's private titles

For most of English history there was no general public record of land titles. Ownership was proven by a chain of private documents — title deeds kept in a box — and by possession. The Statute of Enrolments (1535) required certain conveyances to be enrolled, but conveyancers avoided it. Yorkshire and Middlesex created deed registries in the early eighteenth century; nationwide registration came only in the late nineteenth and twentieth centuries.

America records early

American colonies took a different path. Massachusetts Bay enacted a recording law in 1640, and other colonies followed. In a country of abundant land, mobile people and scarce lawyers, a public record allowed strangers to deal in land with confidence.

What recording does

A deed is generally valid between the parties without being recorded. Recording matters against third parties. The recording acts resolve a specific problem: what happens when an owner conveys the same land twice. Under a race statute, such as North Carolina's, the first to record wins. Under notice statutes, a later purchaser for value without notice of the earlier deed wins. Race-notice statutes, such as California's, require the later purchaser both to lack notice and to record first. The public record supplies constructive notice to the world.

Torrens: registering title instead

In 1858 South Australia adopted the system associated with Robert Torrens, under which the state registers title itself rather than recording documents. The register is conclusive. A few American states experimented with Torrens systems; most kept recording.

Where claims diverge

Some argue that recording a deed "gives" the land to the state, or that an unrecorded deed preserves a private, sovereign title. The history points the other way: recording was designed to protect owners and purchasers against secret conveyances, and leaving a deed unrecorded mainly exposes the owner to a later purchaser's claim. The kernel of truth is that recording draws private dealings into public view — and once land ownership is public, the state's role in defining it grows.

The question that remains

Recording asks the world to trust a public index rather than possession and private papers. Whether that is the guarantor of private property or the means by which it became administrable by government is a fair question, and the honest answer may be both.