Protection of real estate interests and Washington’s Recording Act

In Washington, a “bona fide purchaser for value” (i.e. one who, for valuable consideration, acquires an interest in realty without notice of another’s claim) generally takes the interest free-and-clear of the unknown claim. Glaser v. Holdorf, 56 Wn.2d 204, 352 P.2d 212 (1960). 

Hence, the importance of protecting real estate interests by public recording, as authorized by Washington’s Recording Act, RCW 65.08.  Importantly, under the Recording Act, public recording imparts “constructive” notice of the claim to the public. RCW 65.08.070; Levien v. Fiala, 79 Wn. App. 294, 300 (1995). Thus, proper recording means the entire public is automatically deemed to have notice of the claim or interest, regardless of whether they actually review the real estate records or not.    

“Proper” recording, as used in this post, generally means proper indexing of the instrument.  As has been explained in a prior post, real estate recordings are maintained by the county in a “grantor” and “grantee” index.  This enables examiners to search and closely follow a particular property’s “chain-of-title.”  To ensure the recording is properly indexed and is discoverable within the “chain-of-title,” the instrument and the coversheet must accurately identify the grantor, grantee, and a description of the property conveyed.  See e.g. Dickson v. Kates, 132 Wn. App. 724, 737 (2006) (where existing property is described, the index and the recorded document give notice only as to matters within its chain of title; thus, one searching the index has a right to rely upon the index  and recorded documents and is not bound to search the record outside the chain of title of the property presently being conveyed.)

Concerning the adequacy of property's description, there has been considerable caselaw on the topic, with the more recent caselaw being less stringent. But best-practice is to always identify the property’s full legal description, common address and tax parcel number. Most counties will require a coversheet with this information prior to accepting the instrument for recording.

What property interests / claims should be recorded?  Any and all of them.  Whether voluntary, involuntary, contingent, etc., all interests and claims are subject-to loss if notice to the public is not given.  The first question this author asks of a client asserting a claim to real property is – is it properly recorded?  If the answer is “no”, we are recording the interest / claim, today. Same-day e-recording can be accomplished in many Washington counties through 3rd party service providers.

For those involved in title transactions insured by a title company, the recording of the instrument is handled by the company, who then insures their client for loss caused by a recording failure.  But for those who are claiming or receiving Washington interests without insurance protection, proper recording as authorized by the Recording Act is critical to protecting the claim as against 3^rd parties dealing with the same realty.