Chapter 25 - § 25.1 • THE RECORDING ACT

• Jurisdiction: Colorado

§ 25.1 • THE RECORDING ACT

§ 25.1.1—Statutory Language

The current Colorado recording act, C.R.S. § 38-35-109(1) (after the 1997 amendment), provides:

All deeds, powers of attorney, agreements, or other instruments in writing conveying, encumbering, or affecting the title to real property, certificates, and certified copies of orders, judgments, and decrees of courts of record may be recorded in the office of the county clerk and recorder of the county where such real property is situated; except that all instruments conveying the title of real property to the state or a political subdivision shall be recorded pursuant to Section 38-35-109.5. No such unrecorded instrument or document shall be valid against any person with any kind of rights in or to such real property who first records and those holding rights under such person, except between the parties thereto and against those having notice thereof prior to the acquisition of such rights. This is a race-notice recording statute. In all cases where by law an instrument may be filed in the office of a county clerk and recorder, the filing thereof in such office shall be equivalent to the recording thereof, and the recording thereof in the office of such county clerk and recorder shall be equivalent to the filing thereof.

The historical development of the Colorado recording act is set out in Exhibit 35A to this chapter.

§ 25.1.2—Purpose

The purpose of the recording act is to protect purchasers of real property against the risk of prior secret conveyances by the seller¹ and to permit a purchaser to rely on the condition of title as it appears of record.² Thus, the rights of a purchaser of real property who has no notice of an unrecorded conveyance are not measured by the actual interest of the seller in the property but rather by his apparent interest.³

§ 25.1.3—Operation of the Recording Act

The Colorado recording act does two things: (1) it authorizes recording of certain documents in the office of the clerk and recorder, and (2) it invalidates unrecorded documents (with certain exceptions).⁴ The benefits of the recording act are afforded only to those documents that are recorded pursuant to the act, i.e., those documents recorded in the office of the clerk and recorder. Documents recorded elsewhere are not afforded the benefits of the act, and therefore remain invalid "except between the parties thereto and against those having notice thereof."⁵

§ 25.1.4—Right of Public to Inspect Records

The books...