§6.4 - Effect of Recordation as Notice

• Jurisdiction: Washington

§6.4 EFFECT OF RECORDATION AS NOTICE

If an instrument is eligible to be (see §6.5(1)) and is properly recorded, there will be constructive notice of it, which means that a subsequent, competing claimant will (ordinarily) be bound by the information revealed in the record regardless of whether the subsequent claimant in fact has knowledge of that information. Lincoln County State Bank v. Martin, 112 Wash. 186, 191 P. 815 (1920). One of the sections stating the duties of the county auditor to record "certified copies of final judgments or decrees partitioning or affecting the title or possession of real property" provides that the certified copy when filed for record "imparts notice to all persons of the contents thereof...." RCW 65.04.070. The former recording act, REM. COMP. STAT. §10596, similarly provided a recorded instrument "shall be notice to all the world." The current recording act has no comparable language but merely provides that a "conveyance" may be recorded and if not recorded it is "void" as against certain subsequent claimants. RCW 65.08.070. Nonetheless, recording does afford constructive notice of the instrument, as the indirect consequence of the necessity to search in the records or take the risk that a competing instrument is of record. Lazov v. Black, 88 Wn.2d 883, 567 P.2d 233 (1977). The doctrine of constructive notice does not create rights; rather, it prevents loss of a right revealed in the record. The recording of an instrument does not establish or change its effectiveness between the parties.

(1) Constructive notice—general rule

The normal rule is that constructive notice from recording arises only for instruments "entitled" to be recorded. Flynn v. Garford Motor Truck Co., 149 Wash. 264, 270 P. 806 (1928); Rehm v. Reilly, 161 Wash. 418, 297 P. 147 (1931); Annotation, Possession of Real Property as Notice of Diverse Coexistent Interests of Possessor, 74 A.L.R. §350 (1931); 14 POWELL ON REAL PROPERTY §82.02[1] (Michael Allan Wolf ed. 2000 and Supp. 2007). All ordinary land transaction instruments are recordable (see discussion in §6.5), i.e., are "entitled" to be recorded and will then provide constructive notice. As also there indicated, special statutes direct recording of instruments in particular situations. See also the discussion in 4 WASHINGTON REAL PROPERTY DESKBOOK Ch. 3 (Bona Fide Purchaser Doctrine) (Wash. St. Bar Assoc. forthcoming 2009).

(2) Unacknowledged instruments; any recorded instrumentnotice?

There are at least two additional aspects to be considered. Although an unacknowledged or defectively executed instrument is not recordable under the general statutes, Eggert v. Ford, 21 Wn.2d 152, 150 P.2d 719 (1944), such an instrument is afforded constructive notice upon recording by RCW 65.08.030. Leighton v. Leonard, 22 Wn.App. 136, 589 P.2d 279 (1978). It has been suggested that this section does not apply to current recordings. Professor Stoebuck and the current author find this suggestion unsound. The statute has essentially been unchanged in substance since it appeared in the Code of 1881 §2323. The previous statute, Wash. Terr. Laws of 1873, p. 481, §1, was expressly applicable to instruments with defects in the acknowledgement, "heretofore made or...hereafter" made, and cured the defect"shall be deemed to convey...as perfectly...as if such defect or omission had not occurred...." The 1881 section dropped the curative language and provided that "every instrument which has been recorded...shall impart the same notice...as if [there were no defect in execution or acknowledgment]." The statute next appears as Section 8, Chapter 33, Laws of 1929 (REM. REV. STAT. §10599), with no significant changes, as part of a general revision statute on conveyances and encumbrances of real estate. Its present form in RCW 65.08.030 varies from the 1929 section only in stylistic matters of no substantive consequence. If the statute was intended only to have retroactive effect, there would be need to reenact it with reasonable frequency to avoid a result of uselessness by reason of staleness. Both the length of the gap between 1881 and 1929 and the inclusion of the section in a general revision statute suggest mere continuance of the current operative effect of the law. This conclusion was assumed in the majority and dissenting opinions of Eggert v. Ford, 21 Wn.2d 152, in 1944, in which the issue was whether the auditor could be compelled to record an unacknowledged instrument. For a further discussion of the history of the section and its continuance through various revisions and adoptions of new revised codes, see prior editions of this deskbook. The fundamental point is that the statute was not intended to be a curative act making the instrument operative between the parties; rather it operates to give notice of the instrument's contents for whatever they are worth.

(3) Constructive notice of what?

A properly recorded instrument supplies constructive notice of the rights created by the instrument and of the recitals in the instrument. 14 POWELL ON REAL PROPERTY §82.02 (Michael Allan Wolf ed. 2000 and Supp. 2007)...