Real Property Ownership and Deed Recording
6
Many instruments are not entitled to be recorded unless acknowledged. Unless by statute an
acknowledgment is made essential to the validity of an instrument, the instrument itself is valid
between the parties and persons having actual notice of it, though not acknowledged.
Recordation
While recording a deed does not affect its validity, it is extremely important to record since
recordation protects the grantee. If a grantee fails to record, and another deed or any other
document encumbering or affecting the title is recorded, the first grantee is in jeopardy.
Consistency of Names in Title Instruments
Complete record title to land cannot be established unless the various instruments in a chain of
title in the recorder's office show direct connection by name between the different owners. Any
substantial variation between the name of the grantee in one instrument and the name of the
grantor in the next instrument executed by that grantee will, irrespective of the fact that identity
may be shown by "off record" evidence, render the title defective. Furthermore, the subsequent
instrument executed by the grantor of that grantee cannot impart constructive notice of its
contents to a third person.
A legal name of an individual consists of one personal, or given, name and one surname/family
name. The old common law recognized but one given name and frequently disregarded middle
names or initials. It has been stated that the insertion or omission of, or mistake or variance in a
middle name or initial is immaterial. However, while the omission or addition of a middle name
or initial in an instrument affecting real property is generally considered immaterial, a variance
in middle names or initials may result in defective record of title.
Delivery and Acceptance
A deed is of no effect unless delivered. But delivery in this context means more than a turning
over of the physical possession of the document. The grantor must have the intention to pass title
immediately. It is possible in some cases to have a legal delivery without the instrument actually
being handed to the grantee, if the grantor has the requisite intent to transfer title.
That intention is not present if A gives B a deed but tells B not to record it until A's death, both
parties believing the deed is ineffective until recorded. Nor is such intention present in the typical
case of cross-deeds between husband and wife placed in a joint safe-deposit box with the
understanding that the survivor will record his or her deed.
The law presumes a valid delivery if the deed is found in the possession of the grantee or is
recorded, but such presumption is rebuttable. A deed may be entrusted to a third party (such as
an escrow agent) with directions that it be delivered to the grantee upon the performance of
designated conditions. The deed itself may contain conditions. But with reference to delivery, by
statute, a grant cannot be delivered to the grantee conditionally. Delivery to the grantee, or to the
grantee's agent as such, is necessarily absolute, and the instrument takes effect immediately,
discharged of any condition on which the delivery was made which is not expressed in the deed.
(Or, no delivery may have occurred and the deed may be found to be void.) The grantor
attempting a conditional delivery should withhold transfer of the deed to the grantee until the
conditions are satisfied; or incorporate the conditions in the deed itself; or deposit the deed into