The History of Recording
1. Common Law – The concept of recording did not exist under the common law of England. The English common law relied upon the Latin phrase “prior in tempore potior est in jurell (he who is first in time is preferred in right).
2. Statutory – Relying upon the police powers of the Constitution, states adopted statutory recording laws to protect their citizens from fraud associated with real property matters. Idaho’s basic recording law is found in Title 55, Chapter 8, of the Idaho Code.
a. “Constructive Notice” – The underlying legal principle inherent in the concept of recording, is the statutory presumption that the proper recording of a document gives the public notice of the content of the document. This principle is known as “constructive notice”, and is provided for in I.C. 55-811. “Constructive notice” can prevent a subsequent grantee of real property from being a “bonafide purchaser for value” and can determine the priority between competing lienholders (I.C. 55-812). A “bonafide purchaser for value” (BFP), is someone who acquires an interest in real property without knowledge of a defect in title, and who tenders value for their interest.
In Idaho, recording is not part of the actual conveyancing process. When the grantor delivers a properly executed deed to the grantee, and the grantee accepts the delivery, the conveyance of title to the real property is effective. The act of recording establishes constructive notice and priority among competing interests in the same parcel of real property. I.C. 55-815 provides that an unrecorded instrument is valid as between the parties to the instrument. The Idaho Supreme Court made the following observation about the primary purpose of the recording statutes:
The primary purpose of the recording statutes is to give notice to others that an interest is claimed in real property, and thus give protection against bona fide third parties who may be dealing in the same property.”
(Matheson v. Harris , 98 Idaho 758, 572 P.2d 861, at 864 (1977).
b. Duration of Notice – I.C. 55-817 entitled “Duration of Notice” is a piece of time dated legislation passed in 1951, that would appear to have no current effect. A properly recorded document would provide perpetual notice from the time of “recording”, subject to specific statutory limitations based upon the nature of the lien.